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| Photo Rneches Main entrance Supreme People's Court Beijing |
Read Li Mao's article for the Global Times here.
Showing posts with label Supreme People's Court. Show all posts
Showing posts with label Supreme People's Court. Show all posts
Friday, April 22, 2011
China's Supreme People's Court Will Tell You How Safe Safe Harbours Are
Thursday, April 14, 2011
The Influence of China's Trade deficit on IP Enforcement in China
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| Light at the end? Photo: Danny Friedmann |
Remember that in 2009, because of the financial crisis, the Supreme People's Court urged the lower courts to conservatively grant injunctions, read here. Now too, there are economic circumstances that might not be conducive to the enforcement of IPRs in China. For the first time in seven years China has a trade deficit. China has a huge trade surplus with the U.S. and Europe, but a trade deficit with countries such as Saudi Arabia and Australia, because they import so many commodities. Since commodity rich countries can only absorb so many Chinese export products, chances are that China will try to compensate its trade deficit with countries it already has a trade surplus, such as the U.S. and Europe. Therefore it might not be willing to import more trademarked, patented and copyrighted goods from the U.S. and Europe, which could stimulate a demand for counterfeit and pirated goods. Read more here.
Friday, June 18, 2010
China Copyright and Media Looks At the Law of China's Entertainment Media
IP Dragon's friend Rogier Creemers has started a great website called 'China Copyright and Media, Looking at the Law of China's Entertainment Media', see here.
For this field of study it includes many relevant laws, regulations and rules, from the State Council of the National People's Congress, Central Committee, Supreme People's Court, Public Security Bureau (PSB), State Administration for Radio Film and Television (SARFT), General Administration for Press and Publications (GAPP), State Administration for Industry and Commerce (SAIC), Ministry of Commerce (MOFCOM), etc.
The database is in "beta", but it is already very interesting.
So check it out: China Copyright and Media.
continue reading ...
For this field of study it includes many relevant laws, regulations and rules, from the State Council of the National People's Congress, Central Committee, Supreme People's Court, Public Security Bureau (PSB), State Administration for Radio Film and Television (SARFT), General Administration for Press and Publications (GAPP), State Administration for Industry and Commerce (SAIC), Ministry of Commerce (MOFCOM), etc.
The database is in "beta", but it is already very interesting.
So check it out: China Copyright and Media.
Wednesday, June 10, 2009
Supreme People's Court of China: "Current Economic Situation Makes Granting IPR Injunctions More Difficult"
December 2008, I dealt with the 'Influence of the Financial Crisis on the Enforcement of Intellectual Property in China'. In this post I wrote:
In China there are still villages dependent on the production of counterfeit and pirated goods. The incentive for the Chinese government to enforce intellectual property and make these people de facto unemployed and thus prone to protest is not very likely. The Chinese government might temporarily look the other way when it comes to intellectual property infringement.
Well, the Chinese Supreme People's Court does not look the other way: they came up with an opinion (Opinion on Certain Issues with Respect to Intellectual Property Judicial Adjudication Under the Current Economic Situation) that says for example that courts should consider other measures than injunctions in case an injunction would run counter to the public interest.
This this not contravene China's obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs): Articles 7 and 8 TRIPs, taken together may provide, "a basis for seeking waivers to meet unforeseen conditions of hardship," J.H. Reichman, The TRIPs Agreement Comes of Age: Conflict or Cooperation with the Developing Countries, 32 Case W. Res. J. International Law, 2000, pp. 441 and 461.
Drastic times call for drastic measures, what do you think? And how temporary is the Opinion?
Read Peter Ollier's article about the opinion at Managing Intellectual Property Magazine here.
continue reading ...
In China there are still villages dependent on the production of counterfeit and pirated goods. The incentive for the Chinese government to enforce intellectual property and make these people de facto unemployed and thus prone to protest is not very likely. The Chinese government might temporarily look the other way when it comes to intellectual property infringement.
Well, the Chinese Supreme People's Court does not look the other way: they came up with an opinion (Opinion on Certain Issues with Respect to Intellectual Property Judicial Adjudication Under the Current Economic Situation) that says for example that courts should consider other measures than injunctions in case an injunction would run counter to the public interest.
This this not contravene China's obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs): Articles 7 and 8 TRIPs, taken together may provide, "a basis for seeking waivers to meet unforeseen conditions of hardship," J.H. Reichman, The TRIPs Agreement Comes of Age: Conflict or Cooperation with the Developing Countries, 32 Case W. Res. J. International Law, 2000, pp. 441 and 461.
Drastic times call for drastic measures, what do you think? And how temporary is the Opinion?
Read Peter Ollier's article about the opinion at Managing Intellectual Property Magazine here.
Monday, April 06, 2009
Guidelines of the Supreme People's Court on Implementing the National IP Strategy
Last year China's State Council promulgated the National IP Strategy ("National IP Strategy 2008: Feasible Commitments or Road to Nowhere Paved with Good Intentions" read here), a roadmap that must lead China to become one of the most innovative countries by 2020. The goals formulated in the National IP Strategy were laudable indeed. Question was, how to achieve these goals? Now the Supreme People's Court has formulated some guidelines: 'Comments of the Supreme People's Court on Implementing the National Intellectual [Property] Rights Protection Strategy'. Read the Xinhua article via People's Daily Online here.Peter Ollier and Janice Qu give a good overview of the guidelines in an article for Managing Intellectual Property; read it here.
I don't have the document, yet. Make my day and send it to ipdragon at gmail dot com. Thanks.
I will come back to it, after I got a chance to read it.
UPDATE: Jing "Brad" Luo of China Business Law sent me the link to the guidelines in Chinese, see here. Thanks Bradford!
Thursday, December 18, 2008
More Brooms Sweep Cleaner: Expansion of IPR Tribunals in China
Xie Chuanjiao of the China Daily wrote about the increasing number of IPR court cases and the pilot project of specialised IPR courts in cities such as Beijing, Shanghai, Guangdong, Jiangsu, Zhejiang, Shandong and Fujian (nine intermediate people's courts and 14 courts at district- and county-level). There will be similar IPR tribunals throughout China.Read Xie Chuanjiao's article here. Picture Swamibu
Thursday, February 15, 2007
Forum Shoppers: Do Not Forget to Forget to Send a Cease and Desist Letter
I found 'Forum Shopping Comes to China' one of the clearest articles of China IP Focus 2006 of Managing Intellectual Property. It is written by Benjamin Bai, Tony Chen, Xiang Wang, Peter Wang and research of Lisheng Hao. All, except for Xiang Wang who tranferred to Orrick, see here, work for Jones Day.
The people's courts of big cities are generally perceived as rather fair and having expertise in the field of IP, instead of some of the courts in smaller cities that may be prone to local protectionism and have a much lower level of expertise in the field of IP.
The Civil Procedure Law gives the infringed party the choice to file a lawsuit against the infringer at the location of the infringer's residence or at the place where the infringing act took place:
Article 29 Civil Procedure Law: an action initiated for an infringing act shall be under the jurisdiction of the people's court in the place where the infringing act took place or where the defendant has his or her domicile.
Unless the infringer has residence in a big city where a reputable people's court is located, the infringed party is trying to find one of his infringed goods for sale in a big city so he can file the lawsuit there.
Now the added value of the above-mentioned article kicks in. Before filing a lawsuit at the people's court of your choice you should not first send a cease and desist letter.
If you do, the infringer can ask for a declaration of non-infringement at the people's court of his choice. This will probably be the people's court of his residence, where he might be able to influence the people's court. Now, if a party has asked for a declaration of non-infringement, the underlying facts and issues are basically the same as for a determination of infringement. That is why the people's court that hears the case first will get the jurisdiction over the case, in order to avoid inconsistent rulings.
Suzhou Longbao Bioengineering Industrial Corp. versus Suzhou Langlifu Health Products Co (Supreme People's Court, July 20, 2002). An opinion of the Supreme People's Court was asked by the lower court. As a result of this case the Supreme People's Court recognised declaration of non-infringement as a proper cause of action.
Since this case there have been non-infringement suits in China involving patents, trademarks and copyright.
As a result of Eli Lilly versus Changzhou Huasheng Pharmaceutical Co. Ltd in Qingdao, Shangdong (2003), the Supreme People's Court laid down the rule that the first court who accepts a case can keep the case.
Honda Technology Research Co. versus Shijiazhuang Double-Circle Motor Co. Ltd., et al. (Supreme People's Court, June 24, 2004) confirmed this first-to-accept rule.
Bai, Chen, Wang and Wang write that in these three cases the Supreme People's Court unequivocally established declaration of non-infringement actions, it has yet to provide jurisdictional guidelines for such suits. These could clarify whether a public statement accusing infringement in a general way is sufficient ground for a declaration of non-infringement.
Article 62 draft Rules on Several Issues Relating to Trial of Patent Infringement Cases (Judicial interpretation of Supreme People's Court, October 2003) probably gives the direction the Supreme People's Court wants to go with declarations of non-infringement: the party that wants to ask for a declaration of non-infringement at the people's court has to ask the patent holder first for a declaration of non-infringement, providing the necessary technical information. Only if the patent holder refuses to give a declaration of non-infringement, the requesting party can ask the people's court.
Bai, Chen, Wang and Wang wrote that a letter soliciting negotiation or a license is unlikely to trigger a declaration of non-infringement. If this does not work, one should, however, directly file a lawsuit, skipping any cease and desist letter.
Read the MIP article here (subscription may be needed)
Read Rouse & Co. International's publication 'Requests for declaration of non-infringement of a trademark in China here.
continue reading ...
The people's courts of big cities are generally perceived as rather fair and having expertise in the field of IP, instead of some of the courts in smaller cities that may be prone to local protectionism and have a much lower level of expertise in the field of IP.
The Civil Procedure Law gives the infringed party the choice to file a lawsuit against the infringer at the location of the infringer's residence or at the place where the infringing act took place:
Article 29 Civil Procedure Law: an action initiated for an infringing act shall be under the jurisdiction of the people's court in the place where the infringing act took place or where the defendant has his or her domicile.
Unless the infringer has residence in a big city where a reputable people's court is located, the infringed party is trying to find one of his infringed goods for sale in a big city so he can file the lawsuit there.
Now the added value of the above-mentioned article kicks in. Before filing a lawsuit at the people's court of your choice you should not first send a cease and desist letter.
If you do, the infringer can ask for a declaration of non-infringement at the people's court of his choice. This will probably be the people's court of his residence, where he might be able to influence the people's court. Now, if a party has asked for a declaration of non-infringement, the underlying facts and issues are basically the same as for a determination of infringement. That is why the people's court that hears the case first will get the jurisdiction over the case, in order to avoid inconsistent rulings.
Suzhou Longbao Bioengineering Industrial Corp. versus Suzhou Langlifu Health Products Co (Supreme People's Court, July 20, 2002). An opinion of the Supreme People's Court was asked by the lower court. As a result of this case the Supreme People's Court recognised declaration of non-infringement as a proper cause of action.
Since this case there have been non-infringement suits in China involving patents, trademarks and copyright.
As a result of Eli Lilly versus Changzhou Huasheng Pharmaceutical Co. Ltd in Qingdao, Shangdong (2003), the Supreme People's Court laid down the rule that the first court who accepts a case can keep the case.
Honda Technology Research Co. versus Shijiazhuang Double-Circle Motor Co. Ltd., et al. (Supreme People's Court, June 24, 2004) confirmed this first-to-accept rule.
Bai, Chen, Wang and Wang write that in these three cases the Supreme People's Court unequivocally established declaration of non-infringement actions, it has yet to provide jurisdictional guidelines for such suits. These could clarify whether a public statement accusing infringement in a general way is sufficient ground for a declaration of non-infringement.
Article 62 draft Rules on Several Issues Relating to Trial of Patent Infringement Cases (Judicial interpretation of Supreme People's Court, October 2003) probably gives the direction the Supreme People's Court wants to go with declarations of non-infringement: the party that wants to ask for a declaration of non-infringement at the people's court has to ask the patent holder first for a declaration of non-infringement, providing the necessary technical information. Only if the patent holder refuses to give a declaration of non-infringement, the requesting party can ask the people's court.
Bai, Chen, Wang and Wang wrote that a letter soliciting negotiation or a license is unlikely to trigger a declaration of non-infringement. If this does not work, one should, however, directly file a lawsuit, skipping any cease and desist letter.
Read the MIP article here (subscription may be needed)
Read Rouse & Co. International's publication 'Requests for declaration of non-infringement of a trademark in China here.
Tuesday, December 26, 2006
Anticipated Supreme People's Court Decision in Counterfeit Case Between Montresor and Ferrero
David Eimar reports for The Independent about the much anticipated Supreme People's Court ruling next month between Montresor's Tresor Dore and Ferrero Rocher. Eimar points out a salient aspect of the case:
"Tresor Dore, a popular Chinese brand of chocolates wrapped in gold-coloured paper and presented in the same heart-shaped box as Ferrero Rocher's confectionery, is commonly handed out at government functions."
November 2005 Tianjin Second Intermediate People's Court ruled that Montresor's Tresor Dore chocolates did not counterfeit Ferrero Rocher's chocolates, because according to the Tianjin Second Intermediate People's Court Tresor Dore was better known in China.
Ferrero appealed and in January 2006 the Tianjin Higher People's Court ruled that Montresor was ordered to pay 700.000 yuan to Ferrero because of counterfeiting, read more here.
Montresor was not amused and went to the Supreme People's Court in Beijing, who is deciding in January 2007 whether Montresor's Tresor Dore are counterfeit products.
Eimar notices that the timing of the judgment is crucial: "18 February is the start of the Chinese New Year holiday when chocolate sales traditionally boom. Gold-wrapped confectionery is particularly popular because gold is associated with prosperity."
Read Eimar's article here.
continue reading ...
"Tresor Dore, a popular Chinese brand of chocolates wrapped in gold-coloured paper and presented in the same heart-shaped box as Ferrero Rocher's confectionery, is commonly handed out at government functions."
November 2005 Tianjin Second Intermediate People's Court ruled that Montresor's Tresor Dore chocolates did not counterfeit Ferrero Rocher's chocolates, because according to the Tianjin Second Intermediate People's Court Tresor Dore was better known in China.
Ferrero appealed and in January 2006 the Tianjin Higher People's Court ruled that Montresor was ordered to pay 700.000 yuan to Ferrero because of counterfeiting, read more here.
Montresor was not amused and went to the Supreme People's Court in Beijing, who is deciding in January 2007 whether Montresor's Tresor Dore are counterfeit products.
Eimar notices that the timing of the judgment is crucial: "18 February is the start of the Chinese New Year holiday when chocolate sales traditionally boom. Gold-wrapped confectionery is particularly popular because gold is associated with prosperity."
Read Eimar's article here.
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