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[Special Issue] LONGAN IP Newsletter No.2 2022

Introduction

Since we compiled the intellectual property regulations issued and amended from January 1, 2019 to November 16, 2021 into the report of “The Latest Issuances and Amendments of Laws and Regulations Related to Intellectual Property in China” and its Supplement 1, legislatures at all levels in China have again amended the intellectual property laws and regulations, and issued 3 judicial interpretations of intellectual property laws and regulations, as well as departmental regulations, and normative documents, which are hereby compiled into the report of “The Latest Issuances and Amendments of Laws and Regulations Related to Intellectual Property in China (Supplement 2)” for your reference.

The report is divided into 2 sections as “trademark” and “anti-unfair competition” according to the types of intellectual property. The “trademark” section consists of 2 departmental regulations, and the “anti-unfair competition” section comprises of 1 judicial interpretation.

We hope that the report can help you gain a quick and comprehensive understanding of the recent change regarding the intellectual property laws and regulations in China. If you are interested in the specific content and effect of a certain issuance or amendment, please feel free to contact us. We can readily provide you with further explanations and communications via online meetings.

BEIJING LONGAN LAW FIRM

April 15, 2022

 

Report

Part 1. Summary of issuances and amendments of laws and regulations related to intellectual property

  1. Trademark
  2. Notice of the CNIPA on Continuing to Severely Crack Down on Malicious Registration of Trademarks

Announcement No. [2022] 54 of CNIPA, which was newly issued on April 12, 2022.

  1. Measures for Fast-Track Examination of Trademark Registration Applications (for Trial Implementation)

Announcement No.467 of CNIPA, which was newly issued and came into effect on January 14, 2022.

 

  1. Anti-unfair competition
  2. Interpretation of the SPC on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the PRC

Judicial interpretation No. 9 [2022] of the Judicial Committee of the SPC, which was issued on March 16, 2021, and came into effect as of March 20, 2022.

 

 

Part 2. Key points of issuances and amendments of laws and regulations related to intellectual property

  1. Trademark
  2. Notice of the CNIPA on Continuing to Severely Crack Down on Malicious Registration of Trademarks

Announcement No. [2022] 54 of CNIPA, which was newly issued on April 12, 2022.

 

Key points:

The Notice consists of eight parts, which provide further guidance for the continuous and severe crackdown on malicious trademark registrations from eight aspects: rectification focus, monitoring and early warning, systemic governance, agency supervision, credit supervision, coordination and cooperation, institutional support, and positive guidance. The details are as follows:

 

Strengthen the focus of rectification and crack down on typical acts: strengthen the rectification of malicious hoarding of trademarks and malicious squatting of trademarks which are characterized by “hoarding trademarks”, “imitating famous brands”, “free riding” and “takingadvantage of hot spots”. Ten typical illegal acts which violate the principle of good faith, violate public order and good customs, seek illegitimate interests, and disrupt the order of trademark registration are listed as the focus of

 

Strengthen monitoring and early warning to achieve accurate identification: in the whole process of trademark registration, improve the key monitoring list of applicants of malicious trademark registration not for the purpose of use, focus on monitoring market entities engaged in related behaviors, and improve the accuracy of cracking down on malicious trademark hoarding. Continue to improve the prohibited word database and recommendedword database for trademark registration, and improve the pertinence of cracking down on malicious trademark squatting.

 

Strengthen systemicgovernance and punish severely according to law: continue to improve relevant examination standards, operating procedures and procedural norms, and prevent and regulate malicious trademark registration to the greatest extent of discretion given by law. Restrict malicious hoarding of trademarks for transfer, and strengthen the pre-examination of the use of trademarks to be transferred to make them unprofitable. Guide social forces to widely participate in the source management of trademark registration, orderly promote the “public interest non-use cancellation for three consecutive years”, and release idle trademark resources.

 

Strengthen agency supervision and maintain industry order: implement a strict trademark agency filing management system, strengthen the real-name system management of agency practitioners’ filing, improve the signature system for trademark business handling, and deepen the coordination and linkage of trademark examination and adjudication and filing management. The clues of cases of malicious trademark registration and illegal agency acts shall be forwarded to the local intellectual property management departments, and centralized investigation shall be organized. In case of serious circumstances, the acceptance of its trademark agency business shall be stopped. Strengthen the comprehensive management of platform-based trademark agencies, and guide the establishment and improvement of systems such as malicious application screening, malicious application notification, conflict of interest review, and online application de-duplication verification.

 

Strengthen credit supervision and implement joint punishment: carry out credit supervision in the field of trademark registration in accordance with laws and regulations. Thoseidentified with poor credit shall be listed as key supervision objects during the management period, and are not entitled to facilitation policies and measures such as fast-track examination of trademark registration applications.

 

Strengthen coordination and cooperation to form joint forces of co-governance: further play the role of the joint working mechanism for severely cracking down on malicious applications, and jointly study and handle new major, difficult and complex cases. Strengthen the organic connection between the administration and the judiciary, establish an information sharing mechanism and a pre-trial communication mechanism for major cases, promote the consistency of examination authorization standards, administrative law enforcement standards and judicial judgment standards, and promote the linkage of administrative and judicial procedures to handle cases in batches.

 

Strengthen institutional supportand improve policy supply: continue to promote the amendment of the Trademark Law and its implementing regulations, accelerate the introduction of relevant regulatory provisions on trademark agency, establish a regular amendment mechanism for the Guidelines on Trademark Examination and Adjudication, increase the cost of violations of laws and regulations, and continuously improve the laws and policies against malicious trademark registration.

 

Strengthen positive guidance and create a good atmosphere: strengthen the interpretation of laws and policies through multiple channelsand platforms, publish typical cases and the law-breaking market entities and agencies, guide market entities and agencies to actively conduct self-examination and self-correction to create a good atmosphere for the regular crackdown on malicious trademark registration.

 

In conclusion, the Notice requires to continue to crack down on malicious trademark registration with a “zero tolerance” attitude, regularly crack down on malicious hoarding of trademarks, protect the legitimate rights and interests of market entities, and maintain the public interests, in order to accelerate the transformation of China from a big intellectual property country to a strong intellectual property country.

 

Link: https://www.cnipa.gov.cn/art/2022/4/12/art_75_174557.html

 

  1. Measures for Fast-Track Examination of Trademark Registration Applications (for Trial Implementation)

Announcement No.467 of CNIPA, which was newly issued and came into effect on January 14, 2022.

 

Key points:

The Measures stipulate that four kinds of trademark registration applications involving “national interests, public interests, and significant practical significance to major regional development strategies” may request the CNIPA for a fast-track examination, and it also stipulates the application materials required to submit, the time limit for examination by CNIPA, the acceptance of supervision, etc. Specifically, it involves the following four aspects:

 

It involves the name of a major project, major program, major scientific and technological infrastructure, major event, major exhibition, etc., at the national or provincial level, and urgent need fortrademark protection;

 

It is directly related to responding to a particularly significant natural disaster, a particularly significant accident, a particularly significant public health event, a particularly significant social security event or any other public emergency during the period of that emergency;

 

It is necessary for promoting the implementation of the Outline for the Building of a Country Strong in Intellectual Property in order to serve the high-quality development of the economy and society; or

 

It is of great practical significance for maintaining the national interests, public interestsor major regional development strategies.

 

Link: https://www.cnipa.gov.cn/art/2022/1/18/art_570_172818.html?xxgkhide=1

 

  1. Anti-unfair competition
  2. Interpretation of the SPC on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the PRC

Judicial interpretation No. 9 [2022] of the Judicial Committee of the SPC, which was adopted at the 1862nd meeting on January 29, 2022, issued on March 16, 2021, and came into effect as of March 20, 2022.

The new judicial interpretation consists of a total of 29 articles. In order to correctly hear civil cases arising from unfair competition acts, this Interpretation was formulated in conjunction with relevant legal provisions and judicial practice in accordance with the Civil Code of the PRC, Anti-Unfair Competition Law of the PRC, Civil Procedure Law of the PRC, etc.

Key points:

Articles 1 to 3 respond to the issue of judicial application ofArticle 2 General Provisions of the Anti-Unfair Competition Law, and define the meaning and judgment criteria of “competitive relationship” and “business ethics”;

By clarifying the application relationship between general provisions and specific behavior provisions, the Anti-Unfair Competition Law and specialized intellectual property law, the overall application status of general provisions in the Anti-Unfair Competition Law is clarified, and the position on the issue of “escape from general provisions” in practice is shown; If the accused behavior falls into the category of specific behavior provisions, it shall exclude the application of general provisions. The “competitive relationship” is defined as a generalized competitive relationship, which means “there is a relationship that may compete for transaction opportunities, damage competitive advantages, etc.”. For the judgment of whether “business ethics” is violated, the specific judicial practice is confirmed at the level of judicial interpretation. The above provisions fully reflect the court’s judgment thinking of “weighing individual cases and considering comprehensively” in the hearing of unfair competition disputes.

Articles 4 to 15 clarify the identification of commercial confusion ingreat length;

First, they clarify the connotation of “having certain influence” in the Anti-Unfair Competition Law, which means a mark “having certain influence” should “have a certain market reputation” and “have a marked feature that distinguishes the merchandise resources”; second, they draw on the relevant theories and rules of the Trademark Law, refining the judgment thinking of “confusion” determination; third, they refuse to grant anti-unfair competition protection to marks that cannot be used as trademarks; fourth, they refine the scope of market entities whose names can be protected; fifth, they clarify the application circumstances of the miscellaneous provisions in Article 6 of the Anti-Unfair Competition Law; sixth, they stipulate the constituent elements of sales infringement and contributory infringement.

Articles 16 to 18 distinguish the identification of two categories of behaviors of false commercial advertising and misleading commercial advertising;

Articles 19 to 20 refine the applicationelements for the business discrediting;

Articles 21 to 22 refine the specific application of the ” Specialized Internet Provisions”;

Article 21 further explains and guides the identification of the behavior of “forced redirecting of inserted links”. First, it clarifies the judgment standard of “forced target redirecting”, introduce the element of “without user consent”, and adopt the double consent standard of “consent of both operator and user”. Second, as to whether the behavior of “only insert link, the target redirecting is actively triggered by the user” is governed by the first item of the second paragraph of the “Specialized Internet Provisions”, it clearly stipulates that it is necessary to comprehensively consider “the specific method of link inserting, whether there are reasonable reasons and whether it affects the interests of users and other operators”.

Article 22 further explains and guides the identification of “interfere with the users”. On the basis of the Anti-Unfair Competition Law, the new “Anti-Unfair Competition Law Judicial Interpretation” adds two elements, including “the operator has not clearly indicated in advance and obtained the user’s consent” and “maliciously interferes with or destroys the online products or services legally provided by other operators”. At the same time, the word “etc.” is added after “modify, close, and uninstall”, which reserves room for interpretation for other similar behaviors that interfere with users in the future regulated network environment.

It deletesthe provisions on trade secrets in the original judicial interpretation to avoid overlapping with the judicial interpretation of trade secrets;

Article 23 clarifiesthe application guidelines for statutory compensation for violations of general provisions, false advertising, business discrediting, and unfair competition on the Internet;

Articles 24 to 29 stipulate issues such as the assumption of legal responsibility, jurisdiction, and the transitionbetween the old and new

Link: https://www.court.gov.cn/fabu-xiangqing-351291.html