Shenzhen May Become an Intellectual Property Benchmark City

On October 11, 2020, the General Office of the Central Committee of the Chinese Communist Party and the General Office of the State Council issued the "Pilot Implementation Plan for Building a Pilot Demonstration Area of Socialism with Chinese Characteristics (2020-2025)", which gives Shenzhen much more autonomy in terms of the reform in the key areas, and supports Shenzhen in promoting reform and opening up at a higher starting point, a higher level and a higher goal. It is clear that the plan is to build a benchmark city for the protection of intellectual property rights, carry out pilot projects for the protection of new intellectual property laws, and improve the protection system for the rights and interests of digital intellectual property rights such as Internet information, explore the establishment of sound evidence disclosure, obstruction of evidence and its elimination and advantageous evidence rules, establish a punitive compensation system for intellectual property infringement, and explore the implementation of burden of proof transfer system in intellectual property cases. It is also important to implement credit based hierarchical and classified supervision of intellectual property rights.

Source: People's Network: http://ip.people.com.cn/BIG5/n1/2020/1014/c136655-31891262.html

ZLWD Commentary:

Shenzhen is a city that dares to try, dares to be the pioneer and hard working, which created a miracle in the history of development.  Under the opportunity of the 40th anniversary of Shenzhen Special Economic Zone, the central reform supports Shenzhen's implementation of the pilot comprehensive authorization reform, which is a new exploration of innovative reform method. It is also another crucial measure to promote Shenzhen's reform and opening up in the new era.

Gree Sued the National Intellectual Property Administration to Regain Its “Colour World 色界” Trademark

On May 15, 2020, the Beijing Intellectual Property Court issued a judgment on the case Zhuhai Gree Electric Appliance Co., Ltd. v. the National Intellectual Property Administration over the invalidation request. Gree applied for “格力色界 (Gree Colour World)” trademark on June 16, 2017, which was classified into class 9, and the trademark was invalidated. The Court withdrew the ruling on request for invalidation of trademark “格力色界 (Gree Colour World)”, and the defendant National Intellectual Property Administration shall re-decide the ruling on the third person Xu Changmin's request for invalidation of the trademark “格力色界 (Gree Colour World)”.

Source: China adjudicative documents network: https://wenshu.court.gov.cn/

ZLWD Commentary:

The focus of the dispute in this case is whether the application for registration of the trademark “格力色界 (Gree Colour World)” violates Article 30 of the PRC Trademark Law. The Beijing Intellectual Property Court held that the significance of "格力 (Gree)" in the judgment was much stronger than trademark “色界 (Colour World)”. Therefore, the application for trademark registration did not violate the provisions of Article 30 of the Trademark Law. The decision also reminds other trademark applicants that the key to judge the similarity of trademark is whether it causes public confusion.

Court Decided on the Two "Hualian" Dispute

The plaintiff Maoye Ltd., Hualian Mall Branch is a large shopping mall, which was founded in 2015. The business scope of the company includes jewelry and handicrafts etc.. The defendant Jinhua Ltd., authorized by Tianjin Hualian Commercial Building Enterprise Management Ltd., enjoys the right to use the trademark No. 779258 “华联” in traditional Chinese.

The defendant used the words “华联金店”, “华联黄金”, “华联珠宝” and “华联” to solicit customers in advertising, store recruitment, store interior decoration, sales receipts and social media etc. The plaintiff believed that the defendant's above-mentioned behavior seriously infringed his right of name and shall be regarded as unfair competition. The first instance given by Qinhuangdao Intermediate People's Court supported the plaintiff's partial claim. The judgment took effect and was executed. Afterwards, the plaintiff changed the “华联” in “华联金店” and its icon into “华联” in traditional Chinese. The symble and icon were continued to be used in advertising, store recruitment, store interior decoration and so on.

Qinhuangdao Intermediate People's Court held that the name “华联”, as a commercial enterprise, enjoys high popularity and reputation in the local market, which was known and trusted by the relevant public. Therefore, the plaintiff's “华联” should be regarded as the "enterprise name" stipulated in the Anti-unfair Competition Law and protected by such law.

The court of second instance held that the popularity accumulated by Hualian Mall among the relevant consumers was obviously not derived from the “华联” in the name of the plaintiff's enterprise. In this case, even if Jinhua conducted the behaviour claimed by Hualian Mall, the act did not constitute unfair competition.

The Supreme Court held that the name “华联”, as a commercial enterprise that has been existing in the local area for a very long time, enjoys high popularity and reputation, and is known and trusted by the relevant public. The name should be protected by Anti-unfair Competition Law. Jinhua’s continuing use of “华联” in its store, advertising, store interior decoration and other places may cause confusions to the public.

Source: China Intellectual Property Report

ZLWD Commentary:

The focus of this case is whether Jinhua s use of Hualian logo constitutes unfair competition. According to Article 6 of the Supreme People's Court, Several Issues Concerning the Applicable Laws in the Trial of Unfair Competition Civil Cases Interpretation, “the name of an enterprise registered with the enterprise registration authorities in accordance with the law and the name of a foreign (regional) enterprise used for conducting business within the territory of the China shall be deemed as the "enterprise name" as specified in Article 5(3) of the Anti-unfair Competition Law. Words forming part of an enterprise name that is famous in the market to a certain extent and known to the relevant public may be deemed as the "enterprise name" as specified in Article 5(3) of the Anti-unfair Competition Law.” Therefore, in this case, the name “华联” , as a commercial enterprise, enjoys high popularity and reputation in the local market, which was known and trusted by the relevant public, which should be regarded as the "enterprise name" stipulated in the Anti-unfair Competition Law and protected by such law.

Although the right of enterprise name is also protected by law, the protection for enterprise name would be much weaker than trademark. Therefore, companies should apply for the registered trademark as early as possible and use the trademarks according to its own business scope and business characteristics.

The 22th Session of the Standing Committee of the National People's Congress Passed a Decision in Beijing to Amend the Patent Law

In the afternoon of October 17, the 22th session of the Standing Committee of the 13th National People's Congress closed in the Great Hall of the People in Beijing. The meeting passed a decision on amending the patent law through voting. President Xi Jinping signed Presidential Decree No.55. The purpose of this amendment of the Patent Law is to carry out the guiding spirit of the Party and the State Council, to solve the problems existing in practice, to safeguard the legitimate rights and interests of patentees, to enhance the confidence of innovative subjects in patent protection, and to fully stimulate the innovative vitality of the whole society.

The revision mainly includes three key contents. The first is to strengthen the protection of the legitimate rights and interests of patentees, including increasing compensation for infringement of patent rights, providing one to five times punitive damages for intentional infringement, raising the maximum amount of legal compensation to 5 million, perfecting the burden of proof, perfecting the administrative protection of patents, adding the principle of good faith, adding the time limit compensation system of patent rights and the relevant provisions of the early resolution procedure of drug patent disputes. The second is to promote the implementation and application of patents, including perfecting the job invention system, adding a patent open license system, and strengthening patent transformation services. Third, to improve the patent authorization system, including to further improve the design protection system and increase the application of novelty grace period, improve the patent evaluation report system.

China's current patent law came into effect in 1985, and was amended three times in 1992, 2000 and 2008, which has played an important role in encouraging and protecting inventions. With the development of the society, some new situations and problems have emerged in the field of patents. In order to further implement the requirements of the Party and the State Council, and to solve the problems existing in practice, it is necessary to amend the current patent law.

In 2014, the National Intellectual Property Administration initiated the fourth comprehensive revision and drafting of the Patent Law. On December 5, 2018, the Amendment (Draft) to the PRC Patent Law was examined and approved by the Standing Committee of the State Council. On December 23 of the same year, the draft was first considered at the seventh session of the standing Committee of the 13th National people's Congress. On 28 June 2020, the 20th meeting of the standing Committee of the 13th National People's Congress held the second deliberation. On October 17, the draft was considered and adopted by the Standing Committee of the National People's Congress at its 22th session. The amended Patent Law will come into force on June 1, 2021.

Source: State Intellectual Property Office Government WeChat

ZLWD Commentary:

One of the highlights of the amendment is that the upper limit of legal compensation has been raised. The amount of legal compensation has been revised from 10 to 1 million to 30 to 5 million now, raising the standard of punitive damages. Article 65 of the original Patent Law was changed to Article 71, which stated that “the compensation amount for infringement of patent rights shall be determined according to the actual losses suffered by the holder of patent rights due to the infringement; where it is difficult to determine the actual losses, the compensation amount shall be determined according to the gains derived by the infringer from the infringement. Where it is difficult to determine the losses of the holder of patent rights or the gains derived by the infringer, the compensation amount shall be determined reasonably according to a multiple of the royalties of such patent. The compensation amount shall also include the reasonable expenses incurred by the holder of patent rights in the course of stopping the infringement.”

After increasing the amount of statutory compensation, the infringer of deliberate infringement will bear more liability for compensation. Strengthening the protection of intellectual property rights and increasing the cost of violations of infringers can not only stimulate the enthusiasm of inventors, but also better protect scientific and technological achievements.

The RMB 3.753 billion “Red Bull” Trademark Case Pending for the Second Instance

On October 10, the Supreme People's Court trialed the dispute over the ownership of the "Red Bull" trademark between Red Bull Vitamins Beverage Co., Ltd and Tiansi Medical and Health Co., Ltd.

During the trial, Red Bull held that the court of first instance had not examined the established facts, and many basic facts were not clear, demanding to withdraw the judgment of first instance and a retrial. Tiansi argued that the relevant judgment of the first instance was in line with legal procedures, and that Tiansi held clear, independent and complete ownership of the “Red Bull” series trademarks. The meaning of the relevant terms in the “95 Joint Venture Contract” signed on November 10, 1995 by the shareholders meant that Tiansi, as the owner of the trademark, provided a trademark license to the Red Bull, not transferred the ownership of the Red Bull trademark.

The Supreme People's Court has not made decision on the case yet.

In 2018, Red Bull brought a case against Tiansi in front of the Beijing High People's Court. The first instance judgment showed that the Red Bull requested the court to confirm that Red Bull exclusively own the "Red Bull" series trademark. If such request could not be confirmed, the trademark should be jointly owned by the Red Bull and Tiansi, however, in that case Tiansi shall pay Red Bull advertising costs for RMB 3.753 bilion. Tiansi claims that Red Bull filing lawsuit is an abuse of right of action and is a malicious action, and the purpose of the lawsuit is to attempt to improperly plunder the ownership of the "Red Bull" series trademarks owned by Tiansi, and to deliberately obstruct the related trademark infringement cases being tried by other courts in order to obtain huge illegal benefits by continuing to produce and sell infringing products.

On November 25, 2019, the Beijing High People's Court issued a first instance judgment on the case, rejecting all the claims of Red Bull.

After the judgment of first instance, Red Bull issued a statement expressing its disagree of the first instance judgment, arguing that "the judgment of first instance avoided the main claim of the Red Bull trademark case, that is, confirming that the company has legal rights and interests in the Red Bull series trademark, the right to use the Red Bull trademark and the benefits attached thereto, rather than confirming the company as the registered trademark owner. Red Bull believed that the first instance judgment failed to reflect the principle of fairness. The company firmly refused to accept, and filed an appeal to protect their legitimate rights and interests. Thus Red Bull appealed to the Supreme People's Court immediately afterwards.

Source: China Intellectual Property Information Network

ZLWD Commentary:

Some enterprises have high reputation for targeted brand and exclusive patent rights. They obtain authorization to use the brand through obtaining brand management right. In early days, authorized enterprises can quickly open the market by using brand’s popularity, but often their authorization is about to expire after they become big brands. Although Jiaduobao raised the sales of herbal tea from RMB 2 million to RMB 10 billion, the court still ruled that Guangyao, who owns the trademark, won the case. This also gives a warning to enterprises that while strive to build own enterprise brand, or while obtain the authorization for brand management, compliance must be done in a proper way to prevent unnecessary trademark right dispute.

How did Xiao Tian Cai Lost Its “Xiao Tian Cai” trademark?

The Beijing High People’s Court did not support Guangdong Xiao TIan Cai Technology Co., Ltd. (“Xiao Tian Cai”)’s request and found that the evidence submitted by Xiao Tian Cai was not sufficient to prove that the disputed trademark constituted an extension registration of the No.646497 trademark “Xiao Tian Cai and logo” (“the basic trademark”). The disputed trademark shall be regarded as similar trademark to the trademark No.7833117 and the No.8956371 trademark (“referred trademark”) owned by Du Shu Lang Education Technology Co., Ltd. (“Du Shu Lang”).

On March 27, 2017, the committee ruled that, while the disputed trademark and the referred trademark constituted similar trademarks,  Xiao Tian Cai applied the basic trademark in 1991, which was approved for registration in 1993 for use on game consoles, English-Chinese =memorizer, word-teller and other commodities used with television sets. The evidence could prove that the company continued to use the "Xiao Tian Cai" trademark on game consoles and learning machine commodities, which does not constitute an approximate trademark used on similar goods. At the same time, the situation of obtaining registration by other improper means stipulated in the Trademark Law involves the absolute clause about revocation of trademark registration, and the relevant acts would harm the public order, the public interest or the order of trademark registration management, and the application for registration of trademark disputes does not exist. In summary, the committee ruled to sustain the disputed trademark.

In response to the ruling made by the committee, Zhongshan Du Shu Lang Co., Ltd. filed an administrative lawsuit with the Beijing Intellectual Property Court in May 2017, claiming that the use and application of referred trademarks were prior and had indisputable prior rights.

Xiao Tian Cai claimed that the time of applying for registration of referred trademark was later than that of its basic trademark, and that the disputed trademark has higher reputation, forming a stable market order, and the coexistence with referred trademark will not lead to confusion and misunderstanding among the relevant public.

The Beijing Intellectual Property Court held that the disputed trademark and the referred trademark constitute similar trademarks used on the same or similar commodities, and that the disputed trademark does not constitute an extension of the registration of the basic trademark.

The Beijing High People's Court found that the evidence submitted by Xiao Tian Cai was later than the date of application for registration of the referred trademark, which could not prove the popularity of the underlying trademark, and was too weak to prove that the basic trademark had a high profile after its use. In summary, the court rejected the NIPA and Xiao Tian Cai’s appeal, upheld the first instance judgment.

Source: China Intellectual Property News/China Intellectual Property Information Network; Date of Issue :21 September 2020

ZLWD Commentary:

According to the Article 15 of the Guidelines of the Beijing High People's Court for the Trial of Administrative Cases Involving Trademark Right Granting and Determination, “during the period after an applicant of a disputed trademark has registered its prior trademark and before it applies for a disputed trademark, another person has registered a trademark identical with or similar to the disputed trademark on identical or similar commodities, and such trademark has been continuously used and has a certain popularity, if the applicant of the disputed trademark is unable to prove that the prior trademark has been used or has popularity after being used and there is no likelihood of confusion among the relevant public, the applicant of the disputed trademark asserting that the trademark shall be registered upon approval based on such assertion may not be supported.” Therefore, if the claim is an extension of the registration of the prior basic trademark, sufficient evidence is required to prove the above facts in order to enable the court to consider the impact of the prior trademark on the subsequent trademark. This effect is sufficient to avoid confusion and misunderstanding of the source of the goods. In this case, the visibility evidence of the trademark submitted by the small genius company can not prove that the trademark has been used continuously for a long time and does not constitute an extension of the registration of the trademark “Xiao Tian Cai” applied in 1991.

China's trademark system adopts the principle of first application, so enterprises with intention to use should have trademark layout consciousness and register trademark early. At the same time, if the company intends to apply for multiple related trademarks, in the process of application and use, the company should pay attention to strengthening the relationship between several related trademarks and promoting the relevant public to form a stable understanding of specific sources. Otherwise, the trademark application may be rejected because of the existence of the same or similar trademark in similar goods or services.

Using “Kang Shi Fu” Trademark without Authorization was Found Infringement in the First Instance

Recently, the Beijing Haidian District People's Court (“Haidian Court”) gave a first instance judgment on the infringement of trademark rights and unfair competition disputes between the plaintiff Dingyi (Cayman Island) Holding Co., Ltd (“Dingyi”) and the defendant Zhengzhou Kang Shi Fu Water Co., Ltd (“Zhengzhou Kang Shi Fu”) and Beijing Sou Dou Shi Information Technology Co., Ltd. (“Sou Dou Shi”). Haidian Court found that Zhengzhou Kang Shi Fu used the word “Kang Shi Fu” to advertise the bottled water, which was enough to cause confusion and misunderstanding among the relevant public. It infringes the exclusive right of trademark No.1321811 owned by Dingyi. The court ruled that Zhengzhou Kang Shi Fu shall change its name and published a statement to eliminate the impact and compensate Dingyi for economic losses and reasonable expenses of RMB 350,000. Zhengzhou Kang Shi Fu appealed afterwards.

Dingyi claims that it enjoys the exclusive right to use the registered trademark of “Kang Shi Fu” in class 30 and class 32. Zhengzhou Kang Shi Fu used the “KSF” "ZZKSF" logo on the bottled water it produced and sold, and used the word “Kangs Shi Fu” in the publicity and promotion of makepolo.com and third party websites, which infringed the trademark rights of Dingyi. Zhengzhou Kang Shi Fu registered Kang Shi Fu as an enterprise name and used it, which also constituted unfair competition. In addition, Zhengzhou Kang Shi Fu stated on its official website that “affiliated to Kang Shi Fu International Trade Group Co., Ltd.”, “registered capital RMB 500,000” and “high quality mineral water from more than 700 meters underground”, which are inconsistent with the facts and fraudulent. This behaviour shall be regarded as unfair competition. Sou Dou Shi, as the operator of makepolo.com, constitutes assistance of infringement, and the company highlighted the use of the word “Kang Shi Fu” in the recommended pictures and words of the page, infringing the trademark rights of Dingyi.

Zhengzhou Kang Shi Fu argued that the evidence was not sufficient to prove its existence of infringement. Zhengzhou Kang Shi Fu has its own trademark, the logo conforms to the relevant provisions of the Trademark Law and the Food Safety Law. The enterprise name of Zhengzhou Kang Shi Fu is legally registered by the relevant administrative departments. Also, there is no violation of the trademark rights of others. Sou Dou Shi argued that it was an information network service provider and did not violate Dingyi’s trademark rights.

The Court held that Dingyi had the exclusive right to use a registered trademark and should be protected according to law. The products provided by Zhengzhou Kang Shi Fu are bottled water, which constitutes the same commodity as the "water" in class 32 goods approved for use by the “Kang Shi Fu” trademark No.1321811, and is neither the same nor similar to the “instant noodles”, “coffee and tea” in class 30. Zhengzhou Kang Shi Fu uses the “Kang Shi Fu” and the registered trademark No.1321811 constitute a similar trademark; the “KSF” “ZZKSF” logo used is neither the same nor similar to the trademark involved. Considering that the trademark involved has high market reputation, Zhengzhou Kang Shi Fu used the word “Kang Shi Fu” in its operation, which is easy to cause confusion among consumers and infringes the exclusive right of registered trademark of Dingyi. As an information network service provider, Sogoushi deleted the infringement information in time after the lawsuit was filed, there was no subjective fault to help with the infringement, and the trademark right of Dingyi was not infringed.

With regard to unfair competition, the Haidian Court held that the word "Kang Shi Fu" was registered and used as enterprise names by Zhengzhou Kang Shi Fu. It is easy for the public to mistaken it for its relationship with the “Kang Shi Fu” brand of Dingyi, which constituted as unfair competition. Zhengzhou Kang Shi Fu exaggerated in its marketing materials in terms of its company qualification and product quality, which constitutes false advertising.

Source: China Intellectual Property News/China Intellectual Property Information Network; Date of

ZLWD Commentary:

In business activities, through counterfeiting other people's registered trademarks or logos, borrowing the influence and popularity of others to improve the market competitiveness of themselves and their commodities, misleading consumers that they provide goods with others or have specific relationship with others is not only easy to mislead consumers, but also seriously affects the fair development of market economy.

In the course of business development, if a malicious registered trademark is encountered and the loss is caused to the enterprise, the obligee may bring a civil action according to the Trademark Law and the Anti-unfair Competition Law to demand that the other party stop the infringement, eliminate the influence and compensate for the loss. At the same time, the enterprise should strengthen the awareness of trademark first and, if necessary, carry out defensive registration. If the trademark can be recognized as a well-known trademark by the Trademark Office or the court, the well-known trademark may be protected across class in accordance with the provisions of Article 13 of the Trademark Law, “an application for registration of a trademark which is a replication, imitation or translation of other's well-known trademark already registered in China for use on non-identical or non-similar commodities which is misleading to the public and may cause harm to the interests of the trademark registrant of the said well-known trademark shall not be registered and the use of such a mark shall be prohibited.”

Liu Santian Withdrew the Case, Dark Box (“暗箱”) v. In the Name of the People (“人民的名义”) Copyright Infringement Case Closed

The case Liu Santian v. Zhou Meisen's “In the Name of the People” novel and TV series infringement of copyright has made new progress. On September 22, according to the Shanghai Intellectual Property Court, the appellant Liu Santian withdrew his appeal during the second trial, finding that the first instance judgment that “In the Name of the People” did not constitute an infringement had come into effect, meaning that the copyright dispute, which lasted nearly three years, was closed.

In 2017, the anti-corruption TV series, “In the Name of the People” , adapted from Zhou Meisen's novel, attracted wide attention. On November 1, 2017, Liu Santian sued Zhou Meisen and seven co-producers to the Pudong New Area People's Court of Shanghai and requested that the eight defendants shall stop the infringement, Zhou Meisen shall stop publishing and selling the novel “In the Name of the People”, and the eight defendants needs to publish a statement to eliminate the impact and compensate the plaintiff for economic losses of RMB 18 million.

On April 24, 2019, the Shanghai Pudong New Area People's Court issued a first-instance judgment in this case, finding that the novel “Dark Box” and “In the Name of the People” have neither literal similarity in the expression of words, nor non-word similarity in the overall structure of the work, the specific plot, the relationship of characters and rejected Liu Santian's claim.

Subsequently, Liu Santian disagreed with the first instance judgment and appealed to the Shanghai Intellectual Property Court. In August 2020, Liu Santian withdrew the appeal on the grounds that the court of second instance did not conduct judicial authenticate on the works involved.

The Shanghai Intellectual Property Court held that Liu Santian's withdrawal of the appeal during the trial did not violate the provisions of the law, and the court made a ruling granting permission.

At present, the above-mentioned ruling has been served, the first instance judgment of the case has come into effect.

Source: China intellectual property News WeChat; release time: September 24,2020

ZLWD Commentary:

According to the principle of "dichotomy of thought expression" in copyright law, copyright law protects the expression of works, but does not extend to the thought of works, nor does it need to compare whether they are similar. For the same or similar parts, the limited expressions and expressions belonging to the public domain should be excluded. After excluding the content which is not protected by copyright law, whether the work constitutes infringement depends on whether the expression of the whole structure, specific plot, characters’ relationship and scene of the two works are same or substantive similar. Comparing substantive similarity of works, analysis of structure and characters is often interconnected with the plot. Only when the structure and characters of a work are connected, which can form a certain sequence through creation and development of the plot, enough specific and personalized expressions, can they be protected by the copyright law. In this case, although the subject matter of the two novels are same, there are great differences in the content, the relationship between the characters, the fate, the ending, the main plot and the details, etc., and the expression is completely different. Hence it is concluded that the name of the people does not constitute an infringement.

State Administration of Market Regulation: Luckin and Other 45 Companies Involved in the Case Fined for RMB 61 million

In April, the State Administration of Market Regulation conducted an investigation regarding fraudulent transactions and unfair competition involving Luckin Coffee.

According to the website of the State Administration of Market Supervision, during the period from April to December 2019, Luckin, with the help of a number of third-party companies, falsely promoted the key marketing targets such as sales revenue, cost and profit margin of Luckin. The company used false marketing data through various channels in advertising from August 2019 to April 2020, which deceived and misled the public. This behaviour violated of paragraph 1, article 8 of the PRC Anti-unfair Competition Law, which states that “business operators shall not make false or misleading commercial promotion for the performance, functions, quality, sales, user evaluation, accolades etc so as to defraud or mislead consumers”. 

After investigation, 43 third-party companies, such as Beijing Chexing Tianxia Consulting Service Co., Ltd., Beijing Shenzhou Youtong Science and Technology Development Co., Ltd., and Zhengzhe International Trade (Xiamen) Co., Ltd., provided substantive assistance to Luckin in carrying out false promotion acts, which violated paragraph 2, article 8 of the PRC Anti-unfair Competition Law, which states that “business operators shall not organise false transactions etc to help other business operators to carry out false or misleading commercial promotion”.

On September 18, 2020, State Administration of Market Regulation, as well as the market regulation authorities in Shanghai and Beijing, decided on administrative penalties for 45 companies involved, including above-mentioned companies. The penalty fine amount is RMB 61 million in total.

Source: People.cn

ZLWD Commentary:

Pursuant to the new Anti-unfair Competition Law, paragraph 2 of article 8 provides that “business operators shall not organise false transactions etc to help other business operators to carry out false or misleading commercial promotion." In this case, 43 third-party companies were fined together with Luckin, that is, through fictitious transactions and other forms to help Luckin in false promotion. The punishment they face is exactly the same as the business subject of false promotion. The fine would be between RMB 1 million to 2 million in serious cases.

Faking data on sales is a common way for internet companies, such as Taobao sellers’ “fake orders”, review apps’ “fake positive comments”. In fact, those acts are suspected of false promotion based on unfair competition. According to the above legal provisions, in addition to the operator of their own products for false publicity should be punished, helping others to fake orders, delete negative comments, conduct fictitious transactions and other acts, will also be investigated and dealt with. The penalty of Luckin also warned other enterprises that it is better to enhance the core competitiveness of enterprises and win a good reputation in the market step by step, rather than using false publicity to attract financing and to achieve speedy expansion.

2020 Nobel Chemistry Prize Awarded for CRISPR ‘Genetic Scissors’: A Tool for Rewriting the Code of Life

The 2020 selection for the Nobel Prize in Chemistry goes to two scientists, Emmanuelle Charpentier the Max Planck Unit for the Science of Pathogens Institute for Infection Biology and Jennifer Doudna of the University of California, Berkeley, who have been recognized for their work on CRISPR/Cas9 genome editing — a technique routinely called CRISPR for short and often referred to as “genetic scissors”. This technology has allowed researchers to modify and investigate the genomes of microbial, plant and animal cells with an ease, precision and effectiveness that would have been unfathomable even a decade ago.“There is enormous power in this genetic tool, which affects us all. It has not only revolutionised basic science, but also resulted in innovative crops and will lead to ground-breaking new medical treatments,” says Claes Gustafsson, chair of the Nobel Committee for Chemistry.

Compared with previous gene editing technology, "gene scissors" technology is simple, easy to learn, and inexpensive, which greatly reduces the threshold for rewriting the password of life, and can be widely used in agriculture, medicine, industry, environment and other fields. In 2012, Charpentier and Doudna proved this concept could work. In February, Chinese-American scientist, ZHANG Feng, applied CRISPR/Cas9 gene editing technology to mammalian and human cells for the first time. The two parties once cooperated to establish a company to jointly promote the research and development of CRISPR/Cas9 gene editing technology in disease treatment. It is worth mentioning that although ZHANG Feng failed to win the Nobel Prize this time, he also made great contributions to the development and application of CRISPR/Cas9 technology.

Later, Charpentier, Doudna and ZHANG Feng had disputes over patent ownership. However, the steps of all parties to promote CRISPR/Cas9 applications through layout patents have never stopped. At present, the global application of CRISPR/Cas9 has exploded, and China is at the forefront of CRISPR/Cas9 applications. Plant researchers have used this technology to develop crops that are resistant to mold, pests and drought. New cancer treatments are undergoing clinical trials. The dream of curing genetic diseases may be realized in the near future.

Source: China Intellectual Property News/China Intellectual Property Information Network

ZLWD Commentary:

As gene editing technology is entering the public view since it won the Nobel Prize, the public has great hopes for such technology. It has obvious advantages in shortening treatment time, reducing money cost and reducing mental stress. With broad prospects for clinical applications, many domestic companies have also shown their interest in this new technology. Once the technology is developed, whether there is a legal way to protect it is a debatable question.

China's Patent Law stipulates that for inventions which violate the laws and social ethics or harm public interest, patent rights shall not be granted, and for inventions which are completed by reliance on genetic resources obtained or used in violation of the provisions of laws and administrative regulations, patent rights shall not be granted. Therefore, technical progress or breakthrough based on genes in chemistry, medicine and other fields are difficult to be directly protected in China.

Nevertheless, there are quite a few patents filed under genetic technology, such as diagnosis based on CRISPR effect systems; delivery, use and therapeutic applications of CRISPR/Cas systems and compositions for genome editing and for specific targeting and treatment; vector and vector systems for encoding components of CRISPR complexes and methods for designing and using such vectors; novel CRISPR enzymes and systems; modification and knockout of animal and plant genes; drug screening for building animal, plant and cell models.

Under no circumstances, in order to promote the rapid progress and innovation of technology, patent protection is still the most effective and essential way. Researchers should pay attention to avoid infringing other people's patent rights while conducting the researches.

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, Shell WU, Oyagi, Gong CHEN, Ning NING

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