What In-House Counsels Should Know About China's Anti-Monopoly Law in the Intellectual Property Sector
This brief will highlight the key events and the most relevant legal basis in the IPrelated antitrust fields in China. Some of our readers may be surprised to realize the breadth and depth of the legal and business issues that have been addressed by the Chinese courts.Standards-related IP policies, FRAND royalty rates, refusal to license, patent pools, and injunction relief for standard essential patents are among the issues that have been heatedly debated among policy makers, judges, practitioners and industries.Some Chinese court cases are arguably among the very early decisions worldwide.The future enforcement activities and outcome of private antitrust lawsuits in China may likely continue impacting the trends.
On 7 April 2015, State Administration for Industry and Commerce of the People’s Republic of China (SAIC) published China’s first anti-monopoly regulation specifically aimed at the abuse of intellectual property rights (IP), namely the Provisions on the Prohibition of Abuse of Intellectual Property Rights for the Purpose of Eliminating or Restricting Competition (the Provisions) which will become effective on 1 August 2015. The drafting of the Measures can be traced back to 2009, when the SAIC established a special task force to carry out the research and drafting of the Guidelines on the Anti-monopoly Enforcement in the Intellectual Property Rights field (the Consultation Draft)(the Guidelines). Based on the draft Guidelines, the SAIC issued the draft Provisions for public consultation (the Consultation Draft) in June 2014.The Official promulgation of the Provisions marks a giant leap for the SAIC in terms of anti-monopoly legislation in the IP field.
The State Intellectual Property Office (“SIPO”) is reviving its effort to amend the patent law. A new version of the proposed amendment was released for public comments with a deadline of the end of April 2014.
The earlier draft as released in 2013 attracted some criticism because of the administrative enforcement powers related to patent infringement cases. People were worried about the creation of a separate patent adjudication system. The new version still retains the administrative enforcement powers and also addresses delicate issues such as standard essential patents. Predictably, the new draft will lead to new rounds of heated debates.Continue Reading...
A recent Beijing IP Court decision on “weixin” (the Chinese name of WeChat) trademark has attracted wide discussion and debate in China. On March 11, the Beijing IP Court issued its first instance judgment on the dispute, affirming Trademark Review and Adjudication Board (TRAB)’s refusal to register the “weixin” trademark applied by Trunkbow Asia Pacific (Shandong) Co., Ltd. (“Trunkbow”). The court cited Art. 10.1.8 to rule that Trunkbow’s “weixin” mark, which has no bad faith intent, would have such “unhealthy influence” or “ill effect” as to the existing and stable market order and potentially lead to false recognition among the public. What is particularly noted by the trademark community is that the court believes that allowing the earlier-filed mark to be registered would harm the public interest.Continue Reading...
In China, arbitral tribunals do not have the power to implement interim protection measures, regardless of the institutional rules to be applied to the arbitration. Moreover, the arbitral tribunals are prevented from implementing interim protection measures even if its rules would grant it such a right. In simple terms, the parties to arbitration must first make their applications for property preservation or evidence preservation to the relevant arbitration institution. From there, the arbitration institution then transfers the party's application to the people’s court. The arbitral institution is prohibited from considering the merits of the motion. Based on the recent amendment to Civil Procedure Law of the People’s Republic of China (‘Civil Procedure Law’, the latest version become effective from 1 January 2013), parties are allowed to apply for interim measures directly with the judicial court before initiating arbitration proceedings, which is deemed a sign of pro-arbitration judicial policy.