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Beijing reports top 10 IPR cases
(China Daily)
Updated: 2004-12-18 09:38

1.

Established in 1950, the Sinochem Corporation began to use the name Zhonghua in the 1960s.

Since 1988, Sinochem has registered three combined trademarks including "Zhonghua." Among them, "Zhonghua (Import & Export Agent Service)" was recognized as a renowned trademark by the Trademark Bureau under the State Administration for Industry and Commerce in 2002.

In 2003, the chemical giant found two network companies in Shanghai and East China's Zhejiang Province, which were engaged in the same industry and also used the name "Zhonghua" on their websites.

Sinochem then sued the Shanghai Zhonghua Network Company and Zhejiang Zhonghua Network Company at Beijing No 1 Intermediate People's Court.

The court ruled that Sinochem was the legal owner of the involved well-known trademark of "Zhonghua."

Thus the use of "Zhonghua" as their companies' names by the two accused companies was declared to be misleading, and would result in unfair competition and infringe upon Sinochem registered trademark.

The court ruled in 2004 that the two defendants should stop using "Zhonghua" in their names, websites, products and services.

The two companies were also required to make a public apology to Sinochem and pay it 500,000 yuan (US$60,000) in compensation.

Judge's comment: "Zhonghua" is the second trademark to be confirmed by a Beijing-based court as a renowned one. The first was DuPont in 2001.

2.

Warner Music Hong Kong issued a compact disc with songs performed by well-known singer Aaron Kwok in 1997.

But it was found in 2003 that three music television videos (MTV) on the disc were used as karaoke videos by the Beijing China Town Entertainment Company.

Warner then took the Beijing-based company to court for copyright infringement.

Produced in a similar way to the films, the three MTVs were the result of the creative work of many directors, actors, actresses, photographers and other staff, the Beijing No 2 Intermediate People's Court decided in 2004.

According to the Copyright Law, copyright of works created in movie-like methods should be owned by the producer.

Organizations or personnel who sign their names on the works are their authors, unless there is any evidence to the contrary.

In conclusion, Warner was declared to be the copyright owner of the three MTVs and the China Town company violated the copyright of the Hong Kong-based plaintiff, according to the judgment.

The court ordered the Beijing China Town Entertainment Company to stop its unauthorized use of the three MTVs.

The court ordered it to make a public apology and pay a fine of 38,000 yuan (US$4,600).

Judge's comment: This is the first batch of judgements that affirmed the copyright of MTVs when used in karaoke, something which had previously been widely neglected in China.

3.

The Beijing Wantefu Scientific Company achieved the patent right of utility models for its intracranial haematoma comminuted puncture needles in 1996.

The company bought 10 needles from Xu Yi and Xie Xianggui in 2002, but the packaging did not bear the manufacturer's name. The Beijing Kelinzhong Medical Technology Institute issued an invoice for the products.

Wantefu sued Xu, Xie and the institute for patent infringement in 2002.

The Beijing High People's Court believed that although the needles in question functioned better than the previous technology, they were inferior to those patented by Wantefu.

But the needles could achieve the goal of the invention patented by Wantefu, to clear haematoma using a puncture, according to the court.

The court adopted the principle of equivalence to confirm that the three defendants' behaviour in selling the needles violated Wantefu's patent right.

In 2003, the court ordered Kelinzhong, Xu and Xie to stop selling the needles and destroy all unsold products.

The three defendants were also required to pay compensation of 100,000 yuan (US$12,100) to the plaintiff.

Judge's comment: The case is a rare patent infringement of inferior technology.

4.

The Inner Mongolia Xiaofeiyang Food Chain Company is famous throughout the country for its restaurants with their special chafing dishes - cooking pots with an outer pan of hot water, used to keep food warm.

The company found in 2003 that a type of chafing dish soup, produced by the Inner Mongolia Huacheng Scientific and Trade Company, was also named Xiaofeiyang.

The food chain then took legal action against the maker of the soup and the Shijingshan branch of the Beijing Hualian Supermarket Company where it was sold.

The Beijing No 1 Intermediate People's Court decided in 2004 that Xiaofeiyang was a famous name in providing services using chafing dishes.

Huacheng deliberately set out to illegally use the same name as Xiaofeiyang, according to the court.

The aim of the Huacheng company's behaviour was to profit from confusing consumers into thinking it was the Inner Mongolia Xiaofeiyang Food Chain Company, sources said.

The court decided that Huacheng had infringed Xiaofeiyang's legal rights, resulting in unfair competition.

The court ordered Huacheng to immediately stop this infringement and publicly apologize to Xiaofeiyang.

Huacheng was ordered to pay compensation of 150,000 yuan (US$18,200) to the plaintiff.

Judge's comment: This is the first ever famous service to be confirmed by Beijing-based courts when the name had still not been registered as a trademark.

5.

The Nanhai Publishing Company signed a contract in April 2001 with Zhou Haiying, son of Lu Xun, the great Chinese writer of the early 20th century, to acquire the monopoly publication rights of Zhou's book "Lu Xun and I in 70 Years."

According to the contract, neither party is authorized to permit the third party to publish the book unless both parties agree.

In October 2001, the publishing house permitted Life Times, owned by Guangming Daily, to serialize the book.

Zhou did not receive any payment from Life Times after the newspaper published part of the book in 2001 and 2002.

Guangming Daily was then sued by Zhou for publishing the book without permission and violating the writer's rights of modification and publication.

The Beijing No 1 Intermediate People's Court said that according to the contract, the Nanhai Publishing Company had no right to allow the paper to use the book without permission from Zhou, the copyright owner.

Guangming Daily's decision to publish the book without permission from Zhou violated the writer's copyright, according to the court.

In 2003, the court ordered Guangming Daily to apologize and pay 22,000 yuan (US$2,700) in compensation to Zhou.

Judge's comment: This is a typical and influential case involving the obligation of news media to examine the qualifications of a publishing house when reaching a deal for publication.

6.

The Beijing Hongshi Paint Company registered trademarks for the name and logo of Hongshi in 1988.

In 2003, Chaoyang District Quality and Technology Supervision Bureau in Beijing seized a large amount of paint using the Hongshi trademark and 945 empty paint pots bearing the name of Hongshi from the Beijing-based Baiyutu Chemical Factory.

Sources with the factory admitted that they bought empty paint pots with fake Hongshi trademarks from Tianjin and then filled them with paint they produced.

At least 1,140 kilogrammes of fake paint have been sold by the factory in two batches, the factory admitted.

The Beijing Chaoyang District People's Court ruled in 2003 that Baiyutu had violated Hongshi's monopoly trademark rights.

The court forbade the Baiyutu factory from buying and using paint pots with the logo and name of Hongshi.

It was also ordered to make a written apology and pay compensation of 80,000 yuan (US$9,700).

Judge's comment: A typical counterfeiting trademark lawsuit of imminent infringement. The empty paint pots were also taken into account in the trademark infringement.

7.

Tan Yuqing published an article in 2000 on www.tigtag.com on studying in Australia.

There was an announcement below that the article could not be reprinted without authorization.

Later in the year, Life Times owned by Guangming Daily published an article in the name of Zhou Linfeng which was largely identical to Tan's article, also published by the paper's website.

Tan then took Guangming Daily and the owner of its website to court in 2002.

Sources with the paper said that the article was contributed by Zhou. The paper is unable to determine whether it is plagiarism.

The paper claimed Zhou was paid.

The Beijing No 1 Intermediate People's Court said that Guangming Daily could not prove that it had fulfilled the obligation to determine whether Zhou was the copyright owner of the article.

The court decided the paper and the website had infringed Tan's rights of authorship, modification, usage and his right to receive remuneration.

The court ordered Guangming Daily to pay compensation of 270 yuan (US$33) to Tan and make a public apology.

The website was ordered to pay compensation of 1,240 yuan (US$150) to Tan and also issue an apology.

Judge's comment: According to the Copyright Law, written news media are permitted to reprint others' articles unless the copyright owner forbids this. But news media are required to pay the copyright owner.

8.

Zhang Zhijie, Lou Ningwei and Fang Li are the owners of two lamp design patents.

Zhang Shiliang and Li Ning were once employees of the company belonging to the three patent owners.

After leaving, the two established the Beijing Tiancheng Dingli Environment Arts Company.

Tiancheng Dingli produced and sold two lamps in 2002.

Zhang Zhijie, Lou and Fang found that the two lamps were similar to the appearance of their patented products and took legal action against the company.

The Beijing No 2 Intermediate People's Court said that the two lamps sold by the accused company were nearly the same as the patented products.

The court ruled that Tiancheng Dingli infringed the patent rights of Zhang Zhijie, Lou and Fang.

In 2003, the court ordered Tiancheng Dingli to stop infringing these rights and pay compensation of 30,000 yuan (US$3,600) to the three plaintiffs.

Judge's comment: A typical case of the infringement of a design patent.

9.

American Autodesk has registered the copyright of five types of 3ds Max 3.0, 3ds Max 4.0, 3ds Max 5.0, AutoCAD 14.0 and AutoCAD 2000 software in the United States.

Autodesk found in 2002 that the Beijing Longfa Architecture and Decoration Engineering Company was using 94 sets of this software for commercial purposes without permission.

In response to an accusation from the US company, the Beijing No 2 Intermediate People's Court adopted the lawsuit.

According to Chinese law, foreign software is protected by Chinese laws according to a treaty signed between China and the copyright owner's country.

The national treatment principle is established in the Berne Convention for the Protection of Literary and Artistic Works, of which China and the United States are both members.

The court decided last year that the Autodesk's copyright was protected by Chinese law.

The court ordered Longfa to stop the infringement and make a public apology.

The Beijing-based company was ordered to pay compensation of 1.5 million yuan (US$180,000) to Autodesk.

Judge's comment: Autodesk's victory is among the first batch of judgements that affirmed the responsibility of the end user's of pirated software.

10.

The Beijing Tailian Liangzi Health Care Technology Company, which owns the Liangzi trademark, offers massages to a huge number of customers in Beijing.

Tailian sued the Beijing Jin'gou Liangzi Health Care Service Company when it also used the name of Liangzi on its outdoor shop sign.

The Beijing Haidian District People's Court ruled that Jing'ou intended to profit from its violation of Liangzi's trademark.

The defendant's use of Liangzi as shop sign aimed to confuse consumers into believing that the company was part of Tailian.

The court decided in 2003 that Jin'gou company violated the monopoly trademark rights of Tailian, resulting in unfair competition.

The court ordered Jin'gou to stop infringing Liangzi's trademark rights and pay compensation of 10,000 yuan (US$1,200) to the trademark owner.

Judge's comment: Tailian Liangzi was threatened by the possibility that Liangzi would become a common name for massage in Beijing. The trademark owner has made nearly 20 accusations in order to safeguard its rights. This case is one of most typical ones.

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