On January 10, the National Intellectual Property Administration, PRC (CNIPA) released intensively 2018 annual statistics on patents, trademarks, geographical indications and integrated circuit layout designs. The data shows that in the past year, the number of trademark registration applications in China has reached 7.371 million, and the number of trademark registrations has reached 5.007 million, including 4.797 million trademarks registered in China. The huge number of trademark applications and registrations has not only effectively boosted people's confidence in the development of China's market economy, but also caused some people to worry about trademark "overstatement". In view of the increasingly fierce disorder of malicious registration in the domestic market, the judicial, administrative departments and enterprises have done a lot of works in recent years as well as have achieved certain results, but they still can not suppress the further development of abusive trademark registration disorder from the source.

 

In view of this, the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China specifically set up the panel I with the theme of "Legislative Confirmation of Malicious Registration and Malicious Litigation form Administration to Judi c i a l Practice", invited guests from judiciary, academia and business to conduct in-depth exchanges and discussions on confirmation and suppression of trademark malicious registration and malicious litigation. The panel was presided over Qiao Rongde, Senior Partner of Lusheng Law Firm. Tom Duke, IP Attaché to China& Hong Kong of UK IPO, Amanda Yang, Lusheng Executive and Rui Songyan, Judge of Beijing Intellectual Property Court, delivered their keynote speeches respectively. Cheng Wenjuan, Chief Judge of Civil Adjudication Tribunal No.4 (IPR Division), Yuhang District of Hangzhou City, Alex Liu, Chief Inspector of IP Rights in China of BAYER, Miriam Yang, Lusheng Lawyer, and Fan Junwei, senior expert on intellectual property rights of Alibaba, participated in the panel discussion.

 

Qiao Rongde in his opening speech pointed out that there is still a separation between moral judgment and legal judgment in the identification of abusive trademark registration in China, and summarized the progress of domestic judicial practice in this respect in recent years.

 

In the keynote speech, Tom Duke made a speech on the theme of "Approaches to bad-faith trade mark applications in the UK and China", and put forward some constructive suggestions on the issue of abusive trademark registration in China based on British practice. Based on a research report issued by Lusheng Law Firm on trademark applications and registrations in China, Amanda Yang deeply analyzed the change tendency, influencing factors and category distribution of the trademarks applications and registrations in China, discussed the causes and characteristics of abusive trademark applications in the current Chinese market. Considering the case of Andis, a famous American pet goods manufacturer, represented by LuSheng Law Firm that their trademark “Andis” has been squatted by a Chinese company , Qiao Rongde made an analysis of the criteria for the recognition of "malicious squatting" by the Supreme people's Court and the Beijing Intellectual Property Court. Judge Rui Songyan made a speech with the theme of "Consideration of Malicious Factors in Juridical Practice" and introduced the changing trend in case trial of malicious squatting and malicious litigation in recent years.

 

Subsequently, in the collective discussion session, Liu Hongqiang, Yang Min, Fan Junwei, and Cheng Wenjuan, from the views of enterprises, law firms, e-commerce platforms, courts, and etc., discussed the first case in China in which the obligee took advantage of the Antiunfair Competition Law to crack down on a malicious squatter and to obtain compensation: Bayer AG vs. Li Qing

 

The forum has achieved a good response on the spot, and has certain guiding significance for administrative and judicial practice of malicious registration and malicious litigation in the future in China.

 

 

 

China’s consensus on strict protection of intellectual property rights has attained an unprecedented level. In March 2015, the CPC Central Committee and the State Council jointly issued the Several Opinions on Deepening the Reform of System and Mechanism and Accelerating the Implementation of Innovation-Driven Development Strategy, and proposed to implement the strict intellectual property protection system for the first time. Later, national leaders had mentioned several times the intellectual property protection on various occasions, and it had developed into a whole new climax in 2018. For instance, President Xi had proposed in his speech on November 5, 2018 to introduce a "punitive damages system" .

 

How to understand "strict protection"? Under the background of "strict protection", what are the changes in the refereeing ideas of intellectual property cases? How to formulate the strategy of protecting the rights of enterprises? These has become the particular concerns for companies. Based on this, the 9th China IP International Annual Forum specially set up panel II, with the theme of Enterprises' Global Patent Attack and Defense Strategy Under "Strict Protection", invited judiciary, academia and business figures to have an in-depth communication and discussion on this topic.

 

The panel was chaired by Cheng Yongshun, Director of Beijing Intellectual Property Institute. Song Jian, Deputy Inspector and Member of the Judicial Committee of Jiangsu Higher People's Court, Liu Ming, Intellectual Property Operations Supervisor of Gree Electric Appliances, Inc. of Zhuhai, Zeng Minhui, Senior Partner of ACIP, Qi Hongtao, Partner of Advance China IP Law Office (ACIP), and Li Lu, Senior Manager of ACIP, all focused on the prediction of intellectual property rights in the context of "strict protection", corporate intellectual property rights management and strategy, corporate patent invalidation and defense strategy, and response skills on US 337 investigation and so on.

 

In the keynote speech, Song Jian pointed out that the connotation of strict protection is the firm protection of what should be protected, and no protection of what should not be protected, to balance the legal affairs and public policy. She believes that the determination of infringement and the calculation of reasonable compensation are the two poles of strict protection, and it is recommended to promote the formation of a trial mechanism with the participation of both parties in the litigation, and promote the growth of the independent and impartial third-party institutions on the basis of a litigation mechanism with a substantive confrontation. Furthermore, to attain intellectual property judicial protection policy through "judicial leadership, strict protection, classification policy, proportional coordination".

 

Liu Ming generously shared a set of scientific systems established by Gree Group in the management of intellectual property rights, as well as experience in patent and trademark rights protection. By specific cases, he introduced the rights protection strategies from discovering infringement to confirming infringement, fixing evidence, selecting means, and summarizing.

 

The two guests shared their views on "strict protection" from the perspective of the judiciary and the enterprise. Zeng Minhui, Qi Hongtao and Li Lu from ACIP have given suggestions for corporate intellectual property management and rights protection strategies from their own fields.

 

Zeng Minhui summarized the patent rights protection strategies via cases sharing. It is recommended that enterprises should pay more attention to intellectual property work, improve the quality of product research and development, and lay a solid foundation for the layout of high-value new patents; professional agents should be entrusted to improve the quality of application documents.

 

By sharing invalid patent cases and typical cases, Qi Hongtao expounded the enterprise patent invalidation attack and defense strategy under "strict protection". Its rich experience sharing, vivid case analysis, and guiding thoughts from shallow to deep had won the praises of the participants.

 

Li Lu introduced the skills and precautions of the company's response to the 337 investigation from the aspects of response strategy selection, cost control, evidence collection, and claims game.

 

After the keynote speeches, the speakers and the audience had a lively Q&A, and conducted one-on-one on-site diagnosis and consultation on the intellectual property status of the company.

 

This panel has won a positive response, which has certain guiding significance for the development of patent rights protection strategy for Chinese enterprises in the context of "strict protection" in the future.

 

 

On December 26, 2018, the "First Case" of Beijing Internet Court, which received great attention of society——the dispute case of infringement on the transmission right of work information via internet, namely Tik Tok Short Video v. Huopai Small Video, was pronounced publicly. The plaintiff, Microlive Vision Technology Co., Ltd’s all requests were rejected on the judgement of first instance. The case produced a broad discussion about the similar issues within the industry.

 

Against a backdrop of impact on the traditional copyright concept by the ebullient short videos, the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China particularly established the parallel panel on the theme of "Discussion of Hot Issues on Judicial Trial of Copyright", invited people from judiciary, academia and enterprise industries to jointly discuss the copyright determination of short video, the judgement of short video infringement, the application of short video in the Copyright Law and the affirming factors with which the video sharing platform forms an information storage space and so on.

 

The most important feature of short video is the "shortness". How does this feature affect the recognition of short video as a work? The guests first conducted the discussion on this important question.

 

The guests reached a consensus that short videos of belonging to work should not be denied only because of their duration feature. Meanwhile, the guests analyzed other influence factors from the viewpoints of originality, scenario setting-up, market evaluation with which to determine whether short video belongs to work.

 

Additionally, the guests exchanged their views on how to judge the notice sent by obligee to the infringing platform is valid, how to determine whether the internet service providers have fulfilled their reasonable obligations and so on. Some guests believed that the channels and methods of obligee to send notice won't affect the judgement validity of sending the notice and the obligee only need to prove that the providers of the internet service have been informed of the notice; But other guests believed that the obligee should respect the industry practice, actively choose the public complaint channels of the network service providers to send the notice of infringement, fully reflecting their good will.

 

The third topic focused on the determination of the nature of short videos' watermarks. In the case of "Tik Tok vs. Huopai", should the "Tik Tok" watermark and the watermark of users' personal information in the short video be determined as a technical measure to protect copyright, or the electronic information to manage rights? The guests believed unanimously that technical measures must have the validity of preventing other people from using the work, and at present, a majority of short videos can only show the identities of the transmitters and users of the video work, so it will be more reasonable to determine them as electronic information of managing rights. At the same time, the guests also discussed the legal relation between the behavioral nature and the infringement obligations of the short video platforms, who acted as the network service providers or content service providers of information storage space.

 

In the last topic, the guests explored the calculation methods and reference factors of the damage compensation of short video infringement. In the case of "Tik Tok vs. Huopai", the referential factors using to calculate the tort damages advocated by the plaintiff mainly included the video view, play time and the followers count of the original author's and other flow values.

 

The guests affirmed the key role of the flow value as a reference standard of calculating the short video tort damages.

 

At the end of the above discussions, the guests and the audience had an interactive exchange on other issues related to the judicial judgement of copyright. With rich information, plural view points and profound exploration, the panel had excellent guidance meaning for solving the new problems in copyright judicial field caused by short videos. The panel was chaired by Li Yang, Professor of Law School of Sun Yat-sen University and Qi Lei, Judge of Civil Adjudication Tribunal No.3 (IPR Division) of Beijing Higher People's Court; Yao Bingbing, Chief Judge of Nanjing IP Tribunal; Yang Dejia, Chief Judge of IP Tribunal of Beijing Haidian Court; Li Zizhu, Chief Judge of IP Tribunal of Beijing Chaoyang Court; Yu Jie, Judge of Wuhan IP Tribunal; Deng Hongguang, Professor of School of Law, Southwest University of Political Science & Law and the Director Diao Yunyun from Tencent Litigation Department attended as discussion guests.

 

 

On November 5, 2018, the first China International Import Expo was held in Shanghai. President Xi Jinping attended the opening ceremony and delivered a keynote speech entitled "Building an Innovative and Inclusive Open World Economy Together".

 

President Xi stressed that China's economic development in the past 40 years has been achieved under the open conditions, and that China's future high-quality economic development must also be carried out under the open conditions. China is encouraging enterprises to "going out", however, enterprises are facing a series of problems in the field of intellectual property in the process of "going out". In the new situation, it is a hot topic in the field of intellectual property to carry out a reasonable international layout of intellectual property of enterprises in order to avoid obstacles in the process of "going out".

 

At the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China, a special sub-forum was set up to invite academic, judicial and business people to come together to discuss in depth under the theme of "International Layout Strategy of Intellectual Property of Enterprises under the New Situation". The sub-forum was chaired by Tommy Zhang, President and Editor-in-Chief of China IP Magazine, and keynote speeches were made by Andy Y.Sun, Executive Director of Asia Pacific Legal Institute, Liang Zhiwen, Patent Agent of Innotrack Intellectual Property Law Firm, Chen Yang, Judge of Shenzhen IP Tribunal, Rachel Huang, General Manager & Executive Partner of Ifuture Intellectual Property Consulting(Shanghai) Co., LTD. and Ren Chuanxia, Director of Intellectual Property Department of Hanvon Technology.

 

Tommy Zhang said that the significance and role of the establishment of Alliance of Global Intellectual Property Service (AGIPS) lie in a sharing platform for cross-border communication to achieve the goal of win-win cooperation.

 

In the keynote speech entitled "High Value Patent and Intellectual Property Operation", Andy Y.Sun believed that technologies, products and brands are the "high value" that enterprises should attach importance to.

 

In the speech entitled "Overseas Intellectual Property Risks and Countermeasures", Liang Zhiwen illustrated the trend of intellectual property of overseas businesses and the risk coping strategies, from a commercial perspective, by taking Europe and US as examples. When referring to the "Rules of Evidence in Intellectual Property Litigation", Judge Chen Yang said that in the daily intellectual property litigation, we should attach importance to five principles, namely, the rule of claimer to provide evidence, the rule of superior evidence, the rule of presumption of evidence, the rule of exclusion of illegal evidence, and the rule of comprehensive and objective examination of evidence. Rachel Huang under the theme of "Enterprise Fine Intellectual Property Risk Management", discussed from three perspectives: the regional characteristics of patent system, the commonness of fine patent regional layout risk management, and the practical points of fine patent regional layout risk management. Ren Chuanxia expounded the importance of intellectual property to enterprise development and market, under the theme of "The Strategy of Cultivation, Identification and International Layout of High-Value Intellectual Property of Enterprises" by taking the 20-year development course of Hanvon Technology as an example.

 

After the keynote speeches, an interactive question and answer was made between the audience and the speakers. The content of this sub-forum is unanimously praised by the audience. We believe that it will inspire enterprises to develop the international layout of intellectual property under the new situation.