On March 30, the CNIPA held a regular press conference to introduce the relevant information and future work plans on IP culture shaping. CNIPA's years of efforts in shaping an IP culture and outreach has paid  dividends from the public's rising awareness in respecting and protecting IP to innovators' honed skills in using IP to their advantage.

Both the Central  Committee of the Communist Party of China and the State Council have given   prominent positions to IP culture shaping in a number of their documents. CNIPA has employed a vast range of measures:  branding culture promotions, regular press conferences and  interviews, official accounts on social  media platforms, release of documentaries in Chinese and English, publication of relevant books, set up of expert advisory committee, promotion of IP   education at elementary/high schools, organization of international seminars,  sharing of experience in using IP to lift from poverty, all of which  obviously has caused changes: ever-improving IP culture environment, growing   impact of IP culture brands, constant expansion of IP culture dissemination channels, increasing additions of IP culture products, all-around enhancement  of IP education, sharing of experience in IP culture development with the   world.

With the construction of   intellectual property culture, the concept of intellectual property culture  should also change with the economic and social development. Last year, the Outline for Building a Strong Intellectual Property  Country (2021-2035), issued by the CPC Central Committee and The State   Council, added “fair competition” on the basis of the  original intellectual property culture concept. This move is to strictly  protect intellectual property rights, maintain a fair market environment and  order, and improve the implementation of punitive compensation system and  other measures, to guarantee the intellectual property system in the   industry.

Source: China IP News

Date: April 1, 2022

ZLWD Commentary:

IP talent is the most fundamental, essential and key element for the development of IP work and building an IP powerhouse country. China should not only improve  intellectual property services, but also actively enhance the ability of the new generation for intellectual property  talents, so as to underpin the building of an IP powerhouse country.

On March 22, 2022, the Beijing  Intellectual Property Court issued the second-instance civil judgment in the  unfair competition dispute between Guangzhou Huya and Beijing iQiyi. The   court finally ruled that Huya's live broadcast room continuously broadcast “Langya Bang”, which constituted the  infringement of assistance, was ordered to compensate iQiyi 230,000 yuan.

The live streaming platform Huya has allowed the steamer to broadcast the drama without its permission and without its knowledge, which has seriously infringed the copyright enjoyed by iQiyi in relation to “Lang Ya Bang”. The conduct also disrupted the normal order of market competition and therefore constituted unfair competition. iQiyi sued Huya to the Beijing Haidian District People's Court and claimed compensation for 5 million yuan. The company argued that the drama was streamed by a third-party network user, and that as a network service provider, Huya had fulfilled its obligation to take the necessary measures in a timely manner and was therefore not liable. Meanwhile, Huya argued that the streamer has no contractual relationship with them, hence they shall not bear any responsibility on this matter.

The first-instance court of this case held that, according to the existing  evidence, the streamer directly infringed the copyright of iQIYI. In this regard, Huya, as  the streaming platform, did not take reasonable and effective  measures to stop the infringement  acts of the streamer. It has subjective fault and constitutes the behaviour of  assisting the infringement. Huya appealed to the Beijing Intellectual Property Court, which upheld   the ruling.

Source: China IP Information Network

Date: April 1, 2022

ZLWD Commentary：

In cases of alleged  copyright infringement by live streamer, the central issue should be how to determine the copyright  infringement liability of the live broadcast platform. This case is a good   example of how a platform cannot simply claim that it has no direct  employment relationship with the streamer and allow the streamer to commit infringement. Such a fluke will result   in an unregulated market within the industry. Therefore, the decision in this  case can serve as an important basis for regulating copyright on online  platforms in the future.

According to the Municipal Intellectual Property Office, in order to coordinate the prevention and control of the epidemic and economic and social development, the Several Intellectual Property Work Measures for Fighting the Epidemic and Helping Enterprises to Promote Development was issued.

1.In terms of supporting creation, optimize the priority examination and recommendation mechanism for patent and trademarks related to epidemic prevention and the pre-examination service for rapid examination of patents, and increase support for epidemic prevention-related R&D enterprises and institutions and front-line professional and technical personnel in epidemic prevention-related R&D enterprises and institutions and front-line professional and technical personnel in epidemic prevention in the declaration and identification of high-value patent-related projects and the review of senior intellectual property rights division titles.

2. In terms of strengthening protection, establish a rapid acceptance mechanism for patent infringement disputes related to epidemic prevention, strengthen the protection of intellectual property rights of production enterprises of epidemic prevention materials, support enterprises in the protection of patent and trademark confirmation rights related to epidemic prevention, and severely crack down on irregular patent and malicious trademark registration.

3. In terms of promoting the use of epidemic prevention, rely on professional institutions to strengthen the supply and demand docking of patented technologies related to epidemic prevention, increase support for key units of epidemic prevention and control technologies in projects related to the promotion of the use of intellectual property rights, and introduce policies to increase support for the operation of enterprises' intellectual property rights.

4.  Give play to the role of intellectual property financing, encourage commercial banks to accelerate the handling of intellectual property pledge financing loans for small and medium-sized enterprises, and give special awards to commercial banks for patent and trademark pledge financing loans in the second quarter according to performance.

5. Strengthen intellectual property insurance services. Improve the convenience of intellectual property services from all aspects, simplify the process of insurance claims services, and encourage insurance institutions to increase the financing guarantee insurance for intellectual property pledge.

6. Promote the accurate docking of supply and demand, carry out investigations on the intellectual property pledge financing needs of small and medium-sized enterprises, and timely publish the information of financial institutions' intellectual property pledge financing, guarantees, insurance and other products and services.

7. Where the processing period is extended as appropriate, and where the application for handling matters such as patents, trademarks, integrated circuit layout designs, etc., is truly delayed due to reasons related to the epidemic situation, resulting in the loss of rights, assist in handling the formalities for the restoration of relevant rights in accordance with regulations.

8. Strengthen the services of small and medium-sized enterprises, issue opinions on strengthening the intellectual property work of small and medium-sized enterprises in the city, deepen the implementation of special actions for new small and medium-sized enterprises specializing in intellectual property services, and support and encourage intellectual property service institutions to provide agency assistance and rights protection assistance for small and medium-sized enterprises.

9. Support service institutions to fight the epidemic, strengthen the annual inspection of intellectual property social organizations during the epidemic period, patent agency annual reports, patent agent filing and other services, timely collect, understand and coordinate the solution of practical difficulties of intellectual property service institutions, and support the intellectual property service industry to absorb employment.

10.  Improve business handling and service measures, optimize “Internet+government services”, guide applicants to handle intellectual property business online throughout the process, and optimize and adjust administrative service window service measures as appropriate.

11. Strengthen consultation and guidance on intellectual property business. Strengthen the intellectual property business consulting hotline, PCT international patent application consulting service hotline, intellectual property legal consultation telephone service work, to provide professional consulting services for enterprises and help solve practical problems.

Source: IP Power

Date: April 11, 2022

ZLWD Commentary：

The Measures focuses on a total of 11 specific measures in four aspects, such as giving full play to the important role of intellectual property rights in helping epidemic prevention and control, improving intellectual property financial service capabilities, helping difficult enterprises recover and develop, and strengthening intellectual property service guarantees. Pandemic prevention and control is a tough and uncontrollable battle, and mechanisms should be adapted in a timely manner as a response to reduce the pressure on MSMEs and to effectively promote IP-related business for them.

The plaintiff, Haigou, which operates a live broadcasting platform. The defendant is Wang, who was the operation director of one of the platform of Haigou. Wang has signed a confidentiality agreement with the plaintiff. The plaintiff alleged that during the employment, Wang used his account to log in, view and analyze the background data, which he has known the time point to win the prize. After his resignation, he repeated the said behavior, making a total profit of more than 2 million yuan. In this regard, the plaintiff claimed that the defendant Wang violated its trade secrets, demanding compensation of 3.9 million yuan. In the first instance, Hangzhou Railway Transportation Court held that the business information of Haigou should be protected as trade secrets according to law, and Wang actually used the trade secrets of Haigou, thus constitutes the infringement of trade secrets. The first instance ordered Wang to compensate the plaintiff Higou for 2 million yuan, and pay the punitive damages of 3 million yuan.

Wang filed an appeal to the Hangzhou Intermediate Court. The court held that the real-time data in the background claimed by Haigou is a trade secret, while the probability of winning based on the calculation of real-time data is calculated using a certain algorithm using the background data of the system. The content claimed for protection is not a specific and definite independent object, so it is inappropriate to be protected together with the background data as a trade secret.

Meanwhile, Wang violated the confidentiality obligation by using real-time data to increase the probability of winning the prize so as to obtain the high bonus, which violated Article 9, Paragraph 1 (3) of the PRC Anti-unfair Competition Law. Considering Wang's subjective attitude and infringement act, the court of second instance upheld the ruling of the court for first instance.

Source: IP Lead

Date: April 12, 2022

ZLWD Commentary:

The ruling of this case is conducive to maintaining the market order of the live stream industry and strengthening the protection of the company's trade secrets. Employees shall strictly comply with the confidentiality agreement concluded with the company, and shall not seek illegal personal interests. Meanwhile, the court of second instance further distinguished the elements for constituting trade secrets in a strict manner. There is no violation of the  confidentiality agreement when a trade secret is not an independent object.

On March 31, the 38th meeting of the Standing Committee of the 15th Municipal People's Congress, voted to pass the Beijing Intellectual Property Protection Regulations. The regulations will be implemented on July 1, 2022.

According to the regulations, intellectual property departments and market supervision and administration departments shall strengthen trademark administration, standardize the use of registered trademarks, and investigate and punish acts of infringing on the right to exclusive right to use registered trademarks, maliciously applying for trademark registration, and illegally engaging in trademark agency business.

According to the regulations, the administrative departments of intellectual property protection shall, together with relevant departments, strengthen intellectual property protection in the field of traditional culture and Olympic symbols, and provide consultation and guidance for relevant patent applications, trademark registration, work registration and protection of trade secrets.

The regulations require that network service providers shall take measures to prevent infringement that are commensurate with their technical capacity, scale of operation and type of service; prominently publicize the main channels for right holders to submit infringement notifications, and shall not use limited channels, limit the number of times, etc. to restrict or disguise restrictions on right holders to submit notifications; at the same time, promptly publicize infringement notifications, statements of non-existence of infringement and results of processing.

In case of non-compliance, the network service provider will be ordered to make corrections within a certain period; if the corrections are not made after the deadline, a fine of not less than 10,000 yuan will be imposed; if the circumstances are serious, a fine of not less than 50,000 yuan will be imposed and not more than 200,000 yuan will be imposed.

Source: Beijing Daily

Date: March 31, 2022

ZLWD Commentary:

The quantity and quality of intellectual property rights in Beijing are among the highest in the country. The issuance of the Regulations provides a strong guarantee of the rule of law to strengthen the protection of intellectual property rights, stimulate innovation and creativity, and build the best district for intellectual property rights.

In order to crack down on illegal and irregular IPR agency practices and to promote the healthy development of the IPR service industry, the CNIPA issued the Notice.

The Notice sets out specific requirements in seven areas, including continuing to step up the crackdown on key illegal agency practices, strengthening the comprehensive governance of platform-based IP service providers, and enhancing policy synergy and linkage. CNIPA has strengthened its focus on illegal acts such as acting as an agency for abnormal patent applications, filing patent applications without a license, agencies filing malicious trademark applications, forgery and alteration of official documents, and defraud patent applicants of relevant fees, etc. CNIPA will continue to strengthen the analysis of patent and trademark application data and monitoring of illegal agent leads through big data, the Internet, artificial intelligence and other technical means, organise centralised investigations and deal with them in different regions, and increase direct investigation and supervision of major cases. “Zero Tolerance” policy has been implemented on such matters.

In case of abnormal agents which they act on someone’s behalf in obviously malicious circumstance, a report shall be filed with the CNIPA for heavier punishment. In case of being suspected of defrauding the financial support, it shall be transferred to the relevant department according to the law and investigated for criminal liability.

Source: CNIPA

Date: March 25, 2022

ZLWD Commentary:

Through a series of rectification activities such as investigating and punishing serious violations of law, correcting irregularities in practice and withdrawing irregular patent applications, the government can better regulate the order of the IP service market and enhance the further establishment and improvement of the management system of the IP service industry.

The Regulations covers 51 articles in seven chapters, including the administrative protection, the coordinated protection and the dispute settlement, the social protection, the service and security, the legal liability and other aspects.

In terms of heavier punishment for intellectual property infringement, Article 48 of the Regulations specifies the circumstances where heavier punishment should be imposed and heavier punishment can be imposed. This article provides that, after the administrative penalty decision on intellectual property infringement or the administrative decision or judicial judgment over intellectual property infringement dispute takes effect, where a natural person, a legal entity or an unincorporated organization infringes upon the same intellectual property rights again by the same act, the competent department in charge of intellectual property rights protection shall give the person a heavier punishment. During the process of investigating and punishing illegal intellectual property acts, if the competent departments responsible for intellectual property protection require the parties to provide relevant evidence, and the parties refuse to provide, or forge, destroy or conceal relevant evidence and materials without justifiable reasons, the competent department responsible for intellectual property protection could impose administrative penalties on the basis of the discovered illegal facts and give a heavier punishment.

In establishing and improving the punishment system for dishonest behaviors, Article 46 of the Regulations stipulates that the competent department responsible for intellectual property protection shall promote the construction of the credit system for intellectual property, include the dishonest behaviors of natural persons, legal persons and unincorporated organizations in the field of intellectual property into the public credit information. The social credit department shall determine the punishment measures with the competent authorities responsible for intellectual property protection, and improve the punishment mechanism for breach of intellectual property.

Based on the principle of “stricter protection, greater protection, rapid protection and full protection" for intellectual property rights, the Regulations establish a mechanism for rapid right confirmation, rights protection and dispute handling, which is connected with administrative law enforcement. It is of great significance to promote Guangdong to build a new highland of intellectual property protection and promote the construction of a new development pattern in Guangdong.

Source: The Standing Committee of Guangdong Provincial People's Congress

Date: March 29, 2022

ZLWD Commentary:

The Regulations will come into force on May 1, 2022. Many provisions of the Regulations reflect the guidance of  “stricter protection”, clarifying the provisions on heavier punishment for relevant intellectual property infringement, and establish a punishment system for dishonest behaviors, in order to severely crack down on illegal intellectual property activities.

With regard to the issue raised by the Zhejiang Intellectual Property Office on the validity of electronic evidence of blockchain, the CNIPA made a reply based on the Guidelines for Handling Administrative Decisions on Patent Infringement Disputes, the Provisions of the Supreme People's Court on Several Issues Concerning the Hearing of Cases in Internet Courts and Several Provisions on Evidence in Civil Litigation. In order to promote the unification of administrative and judicial standards, in administrative decisions, if a party submits electronic evidence related to blockchain, the relevant provisions of the Guidelines and the above-mentioned judicial interpretations can be referred to for determination.

Source: CNIPA

Date: March 24, 2022

ZLWD Commentary:

Blockchain electronic evidence provides security protection for electronic data, prevents tampering and leaves traces of the whole process during the whole life cycle of electronic data in terms of generation, collection, transmission and storage, which ensures the authenticity, integrity and legality of the evidence. The reply indicates that the CNIPA has recognized the legal validity of blockchain electronic evidence in the field of intellectual property in administrative adjudication cases of patent infringement disputes.

In order to comprehensively build a powerful province for intellectual property rights and actively create a scientific, standardized and systematic ecology for the administration of intellectual property rights of enterprises, the Intellectual Property Office of Anhui has issued the Implementation Plan to continuously promote enterprises in Anhui to enhance the administration of intellectual property rights, the ability of innovation and creativity, as well as the production and application of high-value patents.

Source:

https://www.cnipa.gov.cn/art/2022/4/18/art_57_174758.html

ZLWD Commentary:

The Implementation Plan specifies that by the end of the 14th Five-Year Plan, Anhui's IPR standardized enterprises will reach the target of 3,000, which emphasizes the four principles in terms of playing the leading role of the government, adhering to the main position of enterprises, strengthening the work of classification and guidance, focusing on market-driven situation. Work arrangements have been made in six aspects, namely, making work plans, carrying out mobilization and deployment, organizing training, guiding enterprises to implement relevant standards, promoting enterprise certification, and making summary and analysis, which specifies the timetable and detailed tasks for the progress of the work, and puts forward the work requirements on strengthening the leadership, enhancing quality of services and ensuring effectiveness.

Recently, the CNIPA issued the Major Tasks for Local Intellectual Property Business Acceptance Windows, requiring local IPR business acceptance windows to thoroughly implement the “Outline for the Construction of a Strong Intellectual Property State (2021-2035)” and the “14th Five-Year Plan for the Protection and Use of Intellectual Property", in order to further improve the “one-stop” services, enrich the functions, enhance the efficiency, and promote the development of business integration from a new starting point.

Source: https://www.cnipa.gov.cn/art/2022/4/15/art_53_174717.html

ZLWD Commentary:

The Major Tasks covers new arrangements in three aspects, namely, expanding functions of windows, enhancing service capabilities of windows and improving the mechanism for management at windows, which includes actively expanding the scope of window services, comprehensively expanding, making use of and promoting services, and enhancing publicity of laws and cultures, enhancing the awareness regarding quality of services at windows. Additionally, efforts shall be made to strengthen business training, communication and talent cultivation, continuously improve the mechanism for window management and guidance and steadily optimize the mechanism of trademark business acceptance windows.

This Newsletter is produced by Economic and Legal Development Research Centre for Guangdong-Hong Kong-Macao Greater Bay Area For Your Reference Only.

Editorial Board: Wei LIN，Simon TANG，Lisi ZHOU，Yu DENG，Yuming LI，Oyagi，Gong CHEN，Ning NING，Zhao LIU，Xiaoyun Su

All Information published in this Newsletter is from open source.

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