This newsletter covers:
- China’s Adjudication Essentials of Intellectual Property Cases
- Squatting on Foreign Trademarks and Guiding Case No. 114 (Dior’s Trademark)
- Japan and China’s Belt and Road Initiative
- People-to-People Connectivity Amid Governmental Tensions
- Call for Submissions
- Group Subscription: e-China Law Connect
China’s Adjudication Essentials of Intellectual Property Cases
The ongoing pandemic and economic crisis have captured so much attention that a significant development in China’s protection of intellectual property (“IP”) rights may have gone unnoticed.
On April 16, 2020, just over a year after the establishment of the Intellectual Property Tribunal of the Supreme People’s Court (the “SPC”), China issued the Adjudication Essentials of the Intellectual Property Tribunal of the Supreme People’s Court (2019) (the “Adjudication Essentials”) to highlight 40 adjudication rules extracted from 36 technical IP cases, in the hope of harmonizing adjudication standards across the country.
Given the document’s importance, the China Guiding Cases Project (the “CGCP”) is honored to feature in Issue 9 of China Law Connect (“CLC”; ISSN 2576-1927 (PRINT); ISSN 2576-1935 (ONLINE)) a commentary contributed by Mr. CUI Yadong, President of the Shanghai Law Society and Former President of the Shanghai High People’s Court. In the commentary titled Adjudication Essentials of Intellectual Property Cases: Highlighting the Progress of Judicial Protection of Intellectual Property Rights in China, Mr. Cui discusses the characteristics and significance of the Adjudication Essentials and offers suggestions for promoting the effective implementation of the adjudication rules in litigation.
But why issue the Adjudication Essentials now, of all times? The opening paragraph of this commentary sheds some light on the answer:
Intellectual property is one of the core elements of international competitiveness. Major countries around the world have treated intellectual property as a necessary tool to reach the highest summits of the global economy and technological innovation, implemented high-level mechanisms for protecting intellectual property rights, and strengthened the most important means for such protection—judicial protection of intellectual property rights.
Releasing the Adjudication Essentials marks another step taken by China in what some may consider an economic and technology marathon. On this long journey, the country has reached a few notable milestones:
- In December 2005, the State Council issued the Outline of the National Medium- and Long-Term Plan for the Development of Science and Technology (2006-2020), which notes, among others, the goal of “significantly enhancing [China’s] autonomous innovation capability” by 2020.
- In July 2017, the State Council presented the Plan for the Development of a New Generation of Artificial Intelligence, which shares China’s aspiration of “becoming the world’s main artificial intelligence innovation center” by 2030 so as to “lay an important foundation [for China] to be among the top innovative countries and economic powers”.
- In August 2019, China issued the Guidelines for the Construction of National Pilot Zones for the Innovative Development of a New Generation of Artificial Intelligence. To date, more than ten artificial intelligence pilot zones have been established in different parts of the country.
For more details about the Adjudication Essentials, another economic and technological milestone that China has achieved, please read the full text of this important commentary in the new e-China Law Connect, which the CGCP just launched to facilitate the delivery of the journal to law firms, companies, and other groups around the world. The CGCP thanks its sponsors for offering financial support to make it possible for us to release the full text of this piece to benefit our global readers! We welcome more support from other sponsors.
Squatting on Foreign Trademarks and Guiding Case No. 114 (Dior’s Trademark)
From left to right: Judge YANG Jing, Guiding Case No. 114, and Dior’s trademark
The progress being made in China with the judicial protection of IP rights is also reflected in the growing emphasis on judicial cases. In another commentary titled Squatting on Foreign Trademarks: China’s Trademark Law and Related Judicial Cases, Dr. YANG Jing, Judge of the Beijing Intellectual Property Court, discusses relevant Chinese legal provisions and cases (e.g., the IPHONE Case, Hermès Case, MUJI Case, AESOP Case, and TOPPIK Case) and then analyzes how Chinese courts would handle a hypothetical case involving preemptive registration of a foreign trademark. For those who are concerned about legal issues of this type, especially business executives of foreign companies and their legal advisers, this article is of great referential value.
Among all judicial cases in China, Guiding Cases are the most important because the SPC has specifically instructed Chinese courts at different levels to cite applicable Guiding Cases in the adjudication of similar subsequent cases. Issue 9 of CLC features the CGCP’s meticulous translation of Guiding Case No. 114 (Parfums Christian Dior S.A. v. The Trademark Review and Adjudication Board of the State Administration for Industry and Commerce, An Administrative Case Concerning a Re-examination to Reject a Trademark Application). In the retrial of this case, the SPC revoked decisions made by the first-instance and second-instance courts and laid out important legal principles regarding the need to adhere to the Madrid Agreement Concerning the International Registration of Marks and its protocol. Specifically, the court decided:
[Where] an applicant for an international registration of a trademark [subsequently] applying for [territorial extension protection in China] has completed the procedures for the trademark’s international registration as provided for in the Madrid Agreement Concerning the International Registration of Marks and its protocol, and the international registration information about the applied-for trademark records that the applied-for trademark has been specified to be a type of three-dimensional trademark, this should be regarded as the applicant’s declaration that the applied-for trademark is a three-dimensional trademark.
Because an applicant for an international registration of a trademark does not need to apply for registration again in a designated country, the information about an applied-for trademark transferred by the International Bureau of the World Intellectual Property Organization to the Trademark Office of China should be the factual basis for the Trademark Office of China to examine and decide whether the application for the territorial extension protection of the applied-for trademark in China, as designated, can be supported.
For more information about Guiding Case No. 114, see the bilingual version published in Issue 9 of CLC.
Japan and China’s Belt and Road Initiative
The post-pandemic economy is likely to be less globalized, as countries may be driven by the pandemic to seek greater self-sufficiency. Does this mean the end of the Belt and Road Initiative (the “BRI”), China’s plan to expand the country’s presence in the world?
In an Experts Connect™ piece titled Japan and China’s Belt and Road Initiative, Mr. Kentaro Ikeda, a Japanese scholar who worked for the Ministry of Economy, Trade and Industry of Japan prior to his current studies at Harvard Law School, explains why Japan, despite some concerns, has interests in the BRI. In addition, Mr. Ikeda describes the approach that Japan has taken to balance its interests in and concerns about the BRI. At the end of the article, he also briefly analyzes the impact that the pandemic might have on Japan’s approach to the BRI.
People-to-People Connectivity Amid Governmental Tensions
Wisdom from Two Cross-Cultural Professionals
During these difficult times when distancing is emphasized and tensions are growing, it is important to recall what people were able to achieve when they were connected more closely. The CGCP’s interviews with two distinguished professionals reveal their remarkable achievements.
In her interview, Ms. Jie Lin, Chairperson and Head of Government Relations at Akamai China, describes how she conceived of pursuing content delivery networks (“CDN”) standardization to promote the CDN sector in China and how she shared this idea with a leader from the China Academy of Telecommunications Research, a research institute under China’s Ministry of Industry and Information Technology. In the end, with support from various technical contributors, including the Akamai global team, China completed the standardization project in 2010, achieving an important milestone for the CDN sector in the country that led to clearer policies formulated specifically for the CDN sector.
In his interview, Mr. Josh Cheng explains his role as the Executive Director of the Stanford Center at Peking University (“SCPKU”) and how the center provides a unique platform to support academic exchange activities for all of Stanford University’s seven schools, including the Stanford Graduate School of Business, School of Medicine, School of Engineering, and others. He highlights the success of various key programs at SCPKU. For example, the Asian Liver Center (the “ALC”) led by Professor Samuel So (Stanford School of Medicine) focuses on communicating best practices for preventing and treating Hepatitis B. The ALC has won widespread recognition and, more importantly, benefited hundreds of thousands of people in the inner provinces of China.
Writing Contest
Center: Golden Award winner Sihan Luo. Sides: The Complete List of Awardees
Amid the growing conflicts between the governments of the United States and China, the CGCP strongly believes that it is even more important for us to help bring people, especially future leaders, together to advance mutual understanding.
To this end, the CGCP and Third Classroom organized the Second Stanford CGCP Student Writing Contest over the past several months. A large number of students participated, representing more than 300 colleges and high schools from 12 countries around the world. Despite the lockdowns implemented by different countries due to the pandemic, friendships were forged and online collaborations were strengthened among many contestants. A complete list of awardees is provided here. The English and Chinese versions of the Golden Award winner Sihan Luo’s essay titled Makeup, Men, and Gender Inequality are published in Issue 9 of CLC.
Call for Submissions
We hope you enjoy the insights and information shared in Issue 9 of CLC! To bolster our efforts, we plan to publish in the upcoming issues of CLC a series of Experts Connect™ pieces contributed by experts and other professionals who have first-hand information to analyze various topics, including:
- the latest developments that shed light on China’s new foreign investment framework;
- the dynamics behind the scenes of significant cases and the impact of Guiding Cases on China law practice inside and outside China; and
- best legal practices to overcome challenges encountered in the lockdown world (e.g. the significance of Internet courts, etc.)
Please review the CLC submission guidelines at https://cgc.law.stanford.edu/clc-submission-guidelines. We look forward to receiving your submission.
Group Subscription: e-China Law Connect
Despite the challenges we are all facing during this difficult time, the CGCP team strives to bring to the world impartial information about China that is not only significant but also little known.
You can help by buying CLC. Readers’ support provides an important source of revenue to sustain the CGCP’s non-profit work. You can purchase all of the issues published in 2019, or you can subscribe to receive all of the issues published in 2020. While the 2018 issues remain freely accessible on the CGCP website (see https://cgc.law.stanford.edu/china-law-connect), you can still order personal PDF copies of the first three issues of CLC here. You can also purchase individual issues of CLC or individual articles to create your own collection.
Moreover, favorable group rates are available for those interested in purchasing CLC issues for legal practitioners, business executives, students/educators, etc. For more information, contact CGCP Managing Editor Jennifer Ingram at [email protected]. Click here to view the online demo showing how the new e-China Law Connect works. We hope you enjoy this new format and look forward to offering access to group subscribers.
Finally, help us move towards our goal of making all CLC content available to the world by donating to the CGCP (make sure to choose “China Guiding Cases Project Fund” from the drop-down menu on the online donation page):
The CGCP thanks the following sponsors for their kind and generous support:
Alston & Bird LLP, Beiming Software Co., Ltd., the Center for East Asian Studies of Stanford University, China Fund of the Freeman Spogli Institute for International Studies of Stanford University, Dentons (Beijing), International and Foreign Language Education (IFLE) office of the U.S. Department of Education (grant 84.015A), Karisma Institute, the McManis Wigh China Foundation, PanUSA, Third Classroom, and Tencent Research Institute.
Since it was founded in February 2011 to help China establish a more transparent and accountable judiciary, the CGCP has shared significant insights about the country’s Guiding Cases and related developments, including the Belt and Road Initiative. To continue receiving messages that highlight these insights, please subscribe to our mailing list here.
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