No.195 October 28, 2022 |
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In this issue
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 A New Version of the English Website of the China National Intellectual Property Administration Went live
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To further improve the service quality of the government's website and strengthen the supply of intellectual property information to the outside world, the Office of the China National Intellectual Property Administration (CNIPA) has made a new version of the official English website, which has been put into service on October 30. (Website: https://english.cnipa.gov.cn)
The new version of the English website aims to serve users, focusing on providing information that users "are most concerned about" and "need most", and, based on deep research, setting up 6 primary columns including Resources, News & Events, Law, Special Topics, Statistics and About Us, and 21 secondary columns. Moreover, the display of intellectual property resourcesis classified into four categories—patent, trademark, layout-design of integrated circuit and geographical indication, anda number of topics of interest to foreign users such as international cooperation, administrative rulings, Hague Agreement and Madrid Agreement have been added.
The new English website has added a "What's New" column, quick links, and a FAQ area on the home page and has highlighted the services that users are most concerned about, such as intellectual property search, application process, and payment, and answers to frequently asked questions. Also, the new English website is also adapted for mobile phones, so that users can browse the webonmobile phones.
(Source: CHINA Official WeChat Account)
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| Notice on Updating of Names of Acceptable Goods and ServicesNot Included in the "Similar Goods and Services Table"
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In order to implement the reform of trademark registration facilitation and further facilitate applications, the Trademark Office of the China National Intellectual Property Administration regularly updates the names of acceptable goods and services that are not included in the "Similar Goods and Services Table" and announces them to the public. The names of acceptable goods and services for the fourth quarter have been released in the trademark search column of the website of the Trademark Office and the trademark online service system, and applicants can submitonline inquiries and applications.
The Trademark Office of the China National Intellectual Property Administration
October 28, 2022
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| China Created 29 New National Import Trade Promotion and Innovation Demonstration Zones
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The Ministry of Commerce of the People's Republic of Chinaand other sevenministries jointly issued a notice to create 29 national import trade promotion and innovation demonstration zones such as the Beijing Capital International Airport Air-transportation Related Economic Zone, Shanghai Huaihai Xintiandi Import Trade Functional Zone, Tianjin Economic and Technological Development Zone, Chongqing Liangjiang New Area, Guangdong Shenzhen Qianhai Shekou Free Trade Zone, etc. Up to now, the number of import demonstration zones has reached forty-three.
Traders and investors from all countries are welcome to extend cooperation in a pragmatic fashion with the import demonstration zones, jointly promote liberalization and facilitation of international trade, and share the opportunities of China's open development. China has been the world's second largest importer for 13 consecutive years and is the export market for 210 countries and regions and the main export market for 60 countries and regions. In the first half of this year, China's imports accounted for 10.6% of world imports.
(Source: Xinhua News Agency)
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| China's Total Service Import and Export Volume in the First Three Quarters Increased by 18.2% Year-on-year
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According to the Ministry of Commerce of the People's Republic of China,China's trade in services continued to grow. From January to September this year, China's total service import and export volume reached 4,472.27 billion yuan, a 18.2% rise year-on-year. Specifically, service exports were 2,148.02 billion yuan, a 20.5% rise year-on-year, andservice imports were 2,324.26 billion yuan, a 16.1% rise year-on-year.
Knowledge-intensive service trade grew steadily. From January to September, China's knowledge-intensive service import and export volume reached 1,864.87 billion yuan, with a year-on-year growth of 10.2%.Specifically,knowledge-intensive service exports were 1,043.02 billion yuan, with a year-on-year growth of 14.9%, and exports in fields of intellectual property royalties, and telecommunications computer and information services gained faster growth rates, namely, a year-on-year increase of 22.5% and 17.4% respectively; knowledge-intensive service imports were 821.85 billion yuan, with a year-on-year growth of 4.8%, andimports in the field of insurance services gained a faster growth rate, namely, an increase of 56.2%.
Imports and exports of travel services continued to recover. From January to September, China's travel services import and export volume reached 623.66 billion yuan, a 7.4% rise year-on-year. Excluding travel services, China's service import and export volume from January to September increased by 20.2% year-on-year; compared with the same period in 2019, the service import and export volume increased by 52.6%.
(Source: People's Daily)
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| Cases in Spotlight
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| Unitalen Client VOV Owned by LG Defended Its Rights Successfully by Winning an Unfair Competition Case in China
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Case Brief:
VOV Cosmetics, a subsidiary of Korean LG Household & Health Care, entered the Chinese mainland market in 2001 and has been widely loved by Chinese consumers after a prolonged period of commercial promotion and use.
From June 2013, Korean VOV had developed cooperation withGuangzhou Lidu Cosmetics Co., Ltd.(hereinafter referred to as "Guangzhou Lidu") in mainland China. Guangzhou Lidu acted as the sole selling agent of Korean VOV in China, sold genuine VOV cosmetics imported from Korea, and agreed not to manufacture or sell any counterfeit VOV cosmetics. Shanghai WeiouweiCosmetics Co., Ltd. (hereinafter referred to as "Shanghai Weiouwei") also participated in the cooperation and signed the agreement as one party. In December 2017, the cooperation relationship between Korean VOV, Guangzhou Lidu and Shanghai Weiouwei was terminated. Shanghai Weiouwei, in collusion with CEJE (registered in the British Virgin Islands), the person not involved in the case, implemented a series of acts of trademark squatting and infringement around thecosmetics brands "VOV" and " "—the CEJE Company registered a large number of series trademarks containing "VOV" approved for use on goods of "cosmetics" in Class 3preemptively or served as the transferee of such trademarks and then licensed Shanghai Weiouwei to use them on cosmetics. Shanghai Weiouwei promoted and sold cosmetics ofbrands "VOV" and " " in the Tmall flagship store, Jingdong flagship store, WeChat official account and other platforms of VOV.These cosmetics brands were owned by Shanghai Weiouwei and produced in China. In addition, the shareholders and actual controllers of Guangzhou Lidu, Shanghai Weiouwei and CEJE were closely related to each other.
In 2020, the Korean LG Group entrustedUnitalen Attorney at Law to file a civil lawsuit with the Xuhui District Court in Shanghai. After the first instance judgment was given, the case was appealed to the Shanghai Intellectual Property Court, which rendered a final judgment in October 2022. Both of the courts determined that Shanghai Weiouwei and Guangzhou Benqu E-commerce Co., Ltd. (hereinafter referred to as "Guangzhou Benqu") (the operator of "VOV Weiouwei Official Flagship Store" on the Tmall platform), without the permission of the right holder, used the word "VOV" (includingthe word in the form of " ") in the promotional contents, product names and store names on websites such as the official website andthe Tmall store, and Sina Weibo, and used the word "VOV" in the domain names, and that such actspertained to acts of unfair competition by unauthorized use of a well-known trade name. The contents"Brand introduction: VOV was founded in Korea in the summer of 1998. In the past ten years, with the sales volumes of several categories ofproducts exceeding 100 million, VOV has stunned the whole country, built up its position in the industry and become one of the top three makeup brands in Korea", "40th anniversary fashion makeup brand of Korean LG Group" and "Korean VOV Weiouwei Makeup (China) Official Weibo"used on the websites were likely to confuse the relevant public and constitutedmisleading propaganda. Shanghai Weiouwei attempted to defend itself in this case with the trademarks that CEJE had registered preemptively. However, the court upheld Unitalen's claimand determined that before VOV cosmetics entered the Chinese market in 2001 and gained popularity, Shanghai Weiouwei and CEJE did not own a legally valid registered trademark, and thatthe defense Shanghai Weiouwei made based on the registered trademarks could not be tenable. It was ruled that Shanghai Weiouwei and Guangzhou Benqu should cease the acts of infringement, compensate VOV for the losses, and publish a statement on the home pages of their official websites, official weibo accounts and the Tmall flagship store to eliminate the ill effects.
Typical Significance:
This case is exemplaryin two aspects. On the one hand, one of the keys to success in this case lies in how to choose the optimal right basisfrom severalplausible ones tomake the optimal litigation plan and achieve the best litigation effect. On the other hand, the root cause of the dispute in this case is that the trademark layout of the right holder is lagging. In the case where the trademarks have been registered preemptively by others successively, the key to winning the case ishow togain the initiative usinglegalmeans in cooperation with administrative means.
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| Unitalen Client HuaHuaNiu Won Three Civil Cases Concerning Trademark Right Confirmation
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Case Brief:
Hua Hua Niu DairyGroup Co., Ltd(hereinafter referred to as "Hua Hua Niu") is a famous dairy product company. Thebrand "Hua Hua Niu" was founded in 1994. Since around 1996, the brand protection of "Hua Hua Niu" has been strengthened by means of continuous trademark registration. Hua Hua Niu owns the trademark No. 1185340 " "(registration date: June 21, 1998) andtrademark No. 3234689 " " (registration date: July 14, 2003) approved for registration on goods items such as milk, yogurt and milk beverages (milk predominating) in group 2907, and ownsthe exclusive right to use the series trademarks No. 15417590 " " (registration date: November 6, 2015) andNo. 17728703 " "(registration date: October 6, 2016) registered ongoods items such as milk in group 2907. "Hua Hua Niu" is also the trade name used by Hua Hua Niu for many years, which carries the goodwill of Hua Hua Niu and has a high reputation as a registered trademark.
Henan Zhengniu Biotechnology Co., Ltd., Henan Zhengniu Beverage Co., Ltd., Henan Zhengniu Food Co., Ltd., and Henan Hua Hua Niu Beverage Co., Ltd. (collectively referred to as "Henan Zhengniu") have mixeddirectors, supervisors and senior managers, and mixed business operations.Zhengniu Biotechnology Co., Ltd.owns the trademark No. 4735856 " 花花牛（Hua Hua Niu）written with seal character (specified color)" registered on goods items of non-alcoholic beverages in group 3202, which was applied for on June 22, 2005 and registered on March 6, 2008.
The addition of the Note 5 to group 2907 of the Similar Goods and Services Table 2012 directly led to the similarity between "milk beverages (milk predominating)" and the beverage goods ingroup 3202, which were not similar before. Henan Zhengniu then began to challenge the registration of the new marks" " and " " of Hua Hua Niu on the goods item of milk beverages (milk predominating) by citing the trademark No. 4735856 " 花花牛（Hua Hua Niu）written with seal character (specified color)", making the above two new marksinvalid on the goods item of "milk beverages (milk predominating)". At the same time, Henan Zhengniu also continued to apply for registration of trademarksof Hua Hua Niu in the regular form ongoods items that are same as, or similar or highly related to the main goods items of Hua Hua Niu Dairy Company. The two parties were caught in a trademark right confirmation deadlock that lasted for nearly ten years.
Besides, Henan Zhengniu produced, sold, andpromoted a large amount of milk or milk-free beverages of a dozen of types such as sour milk beverages, calcium milk and plant protein drinks, walnut milk, compound juice drinks, and sparkling soda water, marked with "  ", " ", " " or other marks. At the same time, Henan Zhengniu also registered and used the trade name "Hua Hua Niu" and the domain name huahuaniufood.com, which caused serious confusion and misunderstanding among the relevant public.
In view of the above, in order to clean up the market and break the deadlock, in June 2021, Hua Hua Niu filed a lawsuit against Henan Zhengniu for infringement and unfair competition in two cases with the Zhengzhou Intermediate People's Court, and then Henan Zhengniu also filed a lawsuit against the milk and milk beverages produced and sold by Hua Hua Niu to the Zhengzhou Intermediate People's Court by claiming the trademark No. 4735856 " 花花牛（Hua Hua Niu）written with seal character (specified color)". At this point, the two parties sued each other in three cases.After two trials in the Zhengzhou Intermediate People's Court and Henan High People's Court, Hua Hua Niu achieved a comprehensive victory in the three cases. Now, the focuses of dispute and the courts' opinions in the three cases (taking the second trial numbers as the case numbers) are briefly summarized as follows:
Case (2022) Yu Zhi Min Zhong No.193: Hua Hua Niu sued Henan Zhengniu for infringing on rights and interests of the prior well-known trademarks such as " " and the prior trade name used on goods including "milk" by Hua Hua Niu by using its own registered trademark of " 花花牛（Hua Hua Niu）written with seal character (specified color)" and marks such as " " on "beverages", and sought for cross-class protection. The courts of both trials determined thatbeverages and milk were similar goods in different classes and that Henan Zhengniu did split the registered trademarks and prominently use part of the registered trademarks to change the distinctive features of the registered trademarks. Ultimately, the courts determined that the trademark infringement was true, and that the use of "Hua Hua Niu" and its pinyin in the trade names and domain name constituted unfair competition and awarded damages of two million yuan. However, the courts did not support the claim that the normativeuse of later registered trademarks shouldbe prohibited based onthe prior well-known trademarks and the prior trade name.
Case (2022) Yu Zhi Min Zhong No.194:Hua Hua Niu sued Henan Zhengniu for using its own registered trademark " 花花牛（Hua Hua Niu）written with seal character (specified color)" and the marks such as " " on "sour milk beverages" and "plant compound drinks". Such use pertains to "use that goes beyond the scope" and "a variant of use", infringing on the rights and interestsof the prior registered trademarks such as " " and the prior trade name. The courts of both trials determined that the goods sued did not belong to "beverages" in Class 32 owned by Henan Zhengniu and were similar to milk beverages (milk predominating), and that the use of similar marks on similar goods infringed the exclusive right to use the registered trademarks and the interests of the prior trade name of Hua Hua Niu. The courts awardeddamages of two million yuan.In addition, it was determined that the undeformed mark " ", which was in the form of a seal as a whole and used on the side faces of products, did not play a role in indicating the source of goods, and thus was not found to be infringing.
Case (2022) Yu Zhi Min Zhong No.612:Henan Zhengniu sued Hua Hua Niu for infringing on the exclusive right to use the registered trademark No. 4735856 " 花花牛（Hua Hua Niu）written with seal character (specified color)" of Henan Zhengniu by using new marks " " and "  " on "milk" and "milk beverages". The willful infringementwas more apparent especially when the new marks of Hua Hua Niu were declared invalid on "milk beverages (milk predominating)". The courts of both trials held that the goods sued belonged to milk and milk beverages in Class 29, instead of beverage goods in Class 32, and that the sued markskept the distinctive features ofthe registered trademarks owned by Hua Hua Niu. Therefore,it was determined that Hua Hua Niu legally used its ownregistered trademarks and thus did not constitute infringement.
Typical significance:
In the case where Zhengniu's registered trademark No. 4735856 " 花花牛（Hua Hua Niu）written with seal character (specified color)" could not be completely denied in the procedures of a dispute over trademark right authorization and confirmation, Hua Hua Niu initiated lawsuitsconcerning trademark infringement and unfair competitionto prohibit Henan Zhengniu'sinfringement acts such as "a variant of use" and "use that goes beyond the scope" of the registered trademarksand unfair competition acts of registering and using the trade name and domain name of Hua Hua Niu, and effectively cracked down on the infringer who sought benefits for itself by the registered trademark it owns, and broke the deadlock of trademark dispute through civil procedure.
What is more, by prevailing in the trademark infringement lawsuit filed by Henan Zhengniu, Hua Hua Niufinally confirmed thatthe milk beverages with the new marks " " and " "did not constitute infringement. After this, Hua Hua Niu removes legal obstacles to using the new marks and paves the way for the development of business with the new marks.
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