Wednesday, December 16, 2020
On December 15, 2020, the China Nationwide Mental Property Administration (CNIPA) launched the First Batch of Guiding Circumstances for Administrative Enforcement of Mental Property Rights (第一批知识产权行政执法指导案例). Administrative enforcement permits rights holders in China to petition administrative businesses to implement their rights together with issuing injunctions, seizing and destroying infringing items and manufacturing tools, and imposing fines on infringers. The First Batch contains 5 guiding circumstances for administrative enforcement of patents, logos, and built-in circuit format designs.
Case 1: Shanghai Chongming District Market Supervision Bureau investigated Shanghai Zhangyuan Data Expertise Co., Ltd. for infringing on the unique proper of Dun & Bradstreet’s (D&B’s) registered trademark.
Shanghai Zhangyuan Data Expertise Co., Ltd. is a former franchise service supplier of Dun & Bradstreet Worldwide Co., Ltd. of the USA. Zhangyuan understanding that “Deng Baishi” is a registered trademark of D&B, nonetheless signed a Baidu search engine promoting contract utilizing that trademark as a search time period. Ranging from December 13, 2018, the Baidu search outcomes shall be marked with “【官】Deng Baishi code_Internationally recognized_ International Normal Enterprise Coding System” to advertise its Dun & Bradstreet coding software service. Via Baidu search, eight firms mistakenly believed that the Zhangyuan was approved by Dun & Bradstreet Worldwide Co., Ltd., and entrusted Zhangyuan to use for Dun & Bradstreet’s coding. On the time of the case, the events had collected a complete of 179,100 yuan for the company service charges of the eight firms talked about above.
Within the strategy of participating in enterprise info session and different providers, the Zhangyuan used the identical or related phrases because the registered trademark of Dun & Bradstreet Worldwide Co., Ltd. to mislead the related public, which violates the provisions of Article 57 (2) of the Trademark Legislation. In accordance with the provisions of Article 60 of the Trademark Legislation, the legislation enforcement company made an administrative penalty determination towards Zhangyuan in accordance with the legislation, ordered Zhangyuan to cease the infringement instantly and imposed a fantastic of 537,700 yuan.
Case 2: The previous Beijing Municipal Administration for Trade and Commerce Fengtai Department investigated and handled the key phrase within the case of Beijing Hongyuan Lead Buying and selling Co., Ltd. infringing on the unique rights of registered logos for “Tiger”
Hongyuan Lide Buying and selling Co., Ltd. offered footwear with infringing marks for a complete of 6,144,646. 64 RMB. In further, there have been 16,277 pairs of footwear in inventory. Calculating based mostly on the precise common gross sales worth of the footwear offered by the events at 307.80 RMB, the stock was value 5,010,060.60 RMB Unlawful enterprise income was decided to subsequently whole 11,154,707.24 RMB. Accordingly, the Fengtai department ordered Hongyuan to cease the infringement instantly in accordance with the provisions of Article 60, Paragraph 2 of the Trademark Legislation, confiscated 6,687 pairs of infringing footwear and imposed a fantastic of 55,773,536.20 RMB.
On this case, there was subjective intent to infringe. The provider concerned had utilized to the Trademark Workplace for a trademark much like the proper holder’s trademark and was rejected. It nonetheless used a mark much like the proper holder’s trademark on the identical items.
Case 3: Wuhan East Lake New Expertise Improvement Zone Market Supervision Bureau investigated and handled the case of Wuhan Keshun United Waterproof Engineering Co., Ltd. infringing on the unique proper to make use of the registered trademark “CKS Keshun”
60 rolls of infringing waterproofing membranes had been bought to be used in a development challenge however not truly used. The act of a celebration buying infringing development supplies and making ready to make use of them within the contracted challenge is deemed to be a gross sales act, and constitutes an act of infringement stipulated in Article 57 (3) of the Trademark Legislation. The unlawful subjective intention is clear, and the unlawful nature of the switch or alternate of the products concerned within the case is unhealthy, and he must be punished severely. In accordance with Article 60 of the Trademark Legislation, the legislation enforcement company made an administrative penalty determination on the events in accordance with the legislation and ordered them to right away cease the infringement, confiscate and destroy the infringing items, and impose a fantastic of 200,000 RMB based mostly on unlawful enterprise income of 22,800 RMB.
Case 4: Handan Mental Property Workplace of Hebei Province Mediated Provisional Damages Accessible from Time of Publication of a Divisional Patent Software
Beneath each U.S. and Chinese language patent legislation, damages could also be obtainable from the time of publication of the patent software. These provisional damages in a Chinese language divisional software will begin from the time of publication of the father or mother software and never the later publication of the divisional software.
In August 2015, the patentee Wang requested a monetary establishment to pay license charges for an invention patent owned by him, and requested the Handan Mental Property Workplace of Hebei Province to mediate a dispute over the provisional damages. Upon verification, the concerned invention patent is a divisional software, and each the applying and the father or mother software have been granted and are in a authorized and legitimate state. Throughout the mediation course of, the 2 events have totally different views on whether or not the publication date of the father or mother case software or the publication date of the divisional software must be used to find out the provisional damages. On this case, the Handan Municipal Mental Property Workplace decided the beginning time for provisional damages for the divisional software is the father or mother’s publication date.
Case 5: CNIPA Handles Dispute Over Built-in Circuit Structure Design
The scope of safety in a selected case is your entire format design or the unique a part of it. For the format design that has been put into business use on the time of registration, the built-in circuit pattern submitted on the time of registration is a reference for figuring out the unique rights of format design.
The claimant Wuxi New Silicon Microelectronics Co., Ltd. owns the unique proper of BS.155508385 built-in circuit format design (hereinafter known as the format design concerned), and its corresponding chip mannequin is WS3080. The claimant believed that the ECH485 chip offered by the respondent Nanjing Rixin Expertise Co., Ltd. available on the market infringed its unique proper of built-in circuit format design. On September 12, 2017, the petitioner submitted a dealing with request to the Administrative Enforcement Committee for Built-in Circuit Structure Design of the State Mental Property Workplace (hereinafter known as the Committee), requesting that the Committee discover that the respondent’s gross sales of ECH485 chips constitutes infringement and order it to cease the infringement. in addition to destroy all infringing merchandise and the masks used for the chip.
Throughout the trial of the case, the committee entrusted a judicial appraisal company in accordance with the legislation to conduct a technical analysis on whether or not the format design of the ECH485 chip is similar because the format design concerned within the case, and whether or not the format design of the WS3080 chip is similar because the format design concerned within the case.
On this case, the claimant submitted 18 drawings of the format design concerned within the case on the time of registration, together with 1 normal drawing and 17 drawings of every layer.
The requestor additionally submitted Four samples of built-in circuits of mannequin WS3080 throughout registration. The appraisal outcome confirmed that the format design sample on this case was in keeping with the format design extracted from the WS3080 chip. Due to this fact, the format design contained within the WS3080 chip can be utilized as a complement to the format design concerned within the case to find out the safety scope of the unique proper of the format design concerned.
On August 16, 2018, the committee decided that the ECH485 chip produced and offered by the respondent infringed the unique proper of the format design concerned, and ordered the respondent to right away cease infringing on the unique proper of the format design concerned within the case in addition to confiscating and destroying the respondent’s drawings, masks and built-in circuits containing the format design concerned within the case.
The unique full textual content is accessible right here: 一批知识产权行政执法指导案例 (Chinese language solely).
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