In order to implement the relevant deployment requirements of the 20th National Congress of the Communist Party of China (CPC) on accelerating the development of the digital economy, strengthen the statistical monitoring of the scale, structure and quality of key digital technology patents, facilitate to tackle the key core technologies of the digital economy, promote the transformation of the results of digital technology, and promote the deep integration of the digital economy and the real economy, the classification system is hereby formulated.

Full text attached: Key Digital Technology Patent Classification System (2023)

(Source: website of the CNIPA)

In order to thoroughly and earnestly implement the deployment of the National Intellectual Property Protection and Use Plan During the 14th Five-Year Plan Period on strengthening the source protection of intellectual property, intensify the quality supervision of intellectual property application for registration, help business entities understand the relevant legal provisions and examination process of same-day application for trademark registration, and guide the applicant of the trademark to follow the principle of integrity, honesty and credibility, and reasonably file applications for trademark registration, the CNIPA has organized compilation of the Guidelines on the Procedures of Same-Day Application for Trademark Registration for the reference of relevant business entities.

Full text attached: Guidelines on the Procedures of Same-Day Application for Trademark Registration

(Source: CNIPA Official WeChat Account)

In order to thoroughly and earnestly implement the deployment of the National Intellectual Property Protection and Use Plan During the 14th Five-Year Plan Period on strengthening the source protection of intellectual property, intensify the quality supervision of intellectual property application for registration, help business entities understand the relevant legal provisions and examination process of trademark assignment, guide the applicant of the trademark transfer to follow the principle of integrity, honesty and credibility, and reasonably file applications for trademark transfer, and prevent confusion or other adverse effects caused by trademark assignment, the CNIPA has organized compilation of the Guidelines on Trademark Assignment Procedures for the reference of relevant business entities.

Full text attached: Guidelines on Trademark Assignment Procedures

(Source: CNIPA Official WeChat Account)

On September 14, the Supreme People's Court released the 2023 People's Court typical anti-monopoly and anti-unfair competition cases. A total of 10 typical cases were released this time, including 5 typical anti-monopoly cases and 5 typical anti-unfair competition cases.

Of the 5 typical anti-monopoly cases, 3 cases in the category of abuse of dominant market position involve 4 types of abusive acts, such as unfairly high prices, limiting transactions, attaching unreasonable trading conditions, and refusing to trade, while 2 cases in the category of monopoly agreements involve vertical and horizontal agreements, respectively. The cases involve industries such as medicine, funeral and interment, car sales and building materials, all of which are closely related to people's livelihoods. The 5 typical cases of anti-unfair competition involve types of cases including disputes over the application of general terms of unfair competition, confusion, false advertising, infringement of technical secrets and unfair competition on the Internet. The cases involve both living consumption areas such as household appliances, short videos, online games and restaurant reviews, as well as high-tech areas such as diagnostic reagents.

Related link: Typical Anti-Monopoly and Anti-Unfair Competition Cases in 2023 by the People's Court

(Source: Supreme People's Court of the People's Republic of China)

Recently, the World Intellectual Property Organization (WIPO) early-released the 2023 Global Innovation Index (GII) "science and technology clusters" ranking, revealing that all five top science and technology clusters are in East Asia with three in China. When the rankings extend to top 100, China is the country with the most clusters.

The data shows that in 2023, Tokyo-Yokohama (Japan) leads as the largest global science and technology cluster, followed by Shenzhen-Hong Kong-Guangzhou (China and Hong Kong, China), Seoul (Republic of Korea), China's Beijing and Shanghai-Suzhou clusters.

Science and technology clusters located in other middle-income economies besides China also saw strong science and technology output growth, notably in India which has 4 top science and technology clusters, with Chennai and Bengaluru experiencing the biggest increases in density of inventors and scientific authors. Science and technology clusters in certain emerging economies grew at a particularly fast pace, including Brazil, India, Turkey, and others.

(Source: Official WeChat Account of China Intellectual Property News)

The 14th Meeting of China-ASEAN Heads of Intellectual Property Offices was held in Nanning, Guangxi Province on September 16. Shen Changyu, Commissioner of the China National Intellectual Property Administration (CNIPA) presided over the meeting. Santisouk Phounesavath, Rotating Chair of the ASEAN Intellectual Property Cooperation Working Group (AWGIPC) and Director General of the Department of Intellectual Property, Ministry of Industry and Commerce of Lao PDR attended the meeting and delivered remarks. Lu Pengqi, Deputy Commissioner of the CNIPA, Lan Quang Le, Director of the Market Integration Directorate of ASEAN Economic Community Department under the ASEAN Secretariat and heads of IP offices of the ASEAN's 10 member states were also present.

The meeting heard China's report on the implementation of the China-ASEAN IP cooperation plan for 2022-2023 and reviewed and approved the China-ASEAN IP Cooperation Work Program 2023-2024.

(Source: website of the CNIPA)

Case Brief

Siemens AG (hereinafter referred to as "Siemens Company") and Siemens (China) Co., Ltd. (hereinafter referred to as "Siemens China Company") enjoy the exclusive right of the involved registered trademark "Siemens" as approved and registered on washing machine products, and the trademark has a high reputation after long-term use. The brand name "Siemens" of Siemens Company and Siemens China Company also has a certain impact. Ningbo Qishuai Electrical Appliance Co., Ltd. (hereinafter referred to as "Qishuai Company") used the logo of "Shanghai Siemens Electrical Appliance Co., Ltd." in the production and sale of washing machine products, product packaging and relevant publicity activities, while Kunshan Xinweichuang Electrical Appliance Co., Ltd. (hereinafter referred to as "Xinweichuang Company"), a sole proprietorship, sold the aforesaid alleged infringing products. Siemens Company and Siemens China Company filed this action on the ground that the aforesaid acts of Qishuai Company and Xinweichuang Company had infringed upon their exclusive right to the registered trademark and constituted unfair competition, and requested compensation of 100 million RMB for economic losses and 163,000 RMB for reasonable expenses. The Higher People's Court of Jiangsu Province held in the first instance that the acts of Qishuai Company and Xinweichuang Company constituted trademark infringement and unfair competition, and fully supported the compensation claims of Siemens Company and Siemens China Company. Qishuai Company and others were dissatisfied and appealed.

After a second-instance hearing, the Supreme People's Court held that Qishuai Company's use of "Shanghai Siemens Electrical Appliance Co., Ltd." in washing machines, commodity packaging and publicity activities constituted trademark infringement of Siemens Company and unfair competition as prescribed in items (2) and (4) of Article 6 of the Anti-Unfair Competition Law. Considering that Qishuai Company refused to provide the financial materials related to the infringement acts in the litigation, it was not improper for the court of first instance to take media coverage on record as the basis for calculating the total sales amount, and calculate the proportion of sales amount of the allegedly infringing products on the basis of a fifteenth, and then determine the amount of damages. Although the existing evidence could not prove the profits from the infringement and the losses from the infringement, it was sufficient to determine that Qishuai Company's benefits from the production and sale of the alleged infringing products obviously exceeded the statutory maximum amount of compensation as prescribed in paragraph 4 of Article 17 of the Anti-Unfair Competition Law. Considering that the enterprise names of Siemens Company and Siemens China Company have relatively high popularity, Qishuai Company had obvious subjective malice, the scale of infringement, the duration of infringement, and in consideration of the profit margin of washing machine products and other factors, the amount of compensation determined in the first instance was not inappropriate. The second instance of the Supreme People's Court rejected the appeal and upheld the original judgment.

Typical significance

This case is a typical case of cracking down on the act of counterfeiting and causing confusion. In this case, the people's court has determined that the use of a mark which is identical with or similar to the brand name and registered trademark of an enterprise name with a certain level of influence as a brand name and the business operations conducted by the enterprise constitute an act of unfair competition as prescribed in Article 6 of the Anti-Unfair Competition Law. At the same time, under the circumstance where the existing evidence cannot prove the profits from the infringement and the specific amount of actual losses, the people's court has specified the considerations for determining the amount of compensation. The judgment of this case is of exemplary significance to the determination of confusion, calculation of compensation amount, and other issues concerning the application of law.

(Source of case: Supreme People's Court (2023 People's Court Typical Anti-Monopoly and Anti-Unfair Competition Cases))

Case Brief

Applicant (the third party in the first instance, the appellant in the second instance, and the petitioner for retrial): Guangzhou Monalisa Building Materials Co., Ltd. (hereinafter referred to as the building materials company), in Guangzhou, Guangdong Province.

Applicant (the third party in the first instance, the appellant in the second instance, and the petitioner for retrial): Guangzhou Monalisa Bath Ware Co., Ltd. (hereinafter referred to as the bath ware company), in Guangzhou, Guangdong Province.

Other party (the plaintiff in the first instance, the appellee in the second instance, and the respondent in the retrial): Monalisa Group Co., Ltd (hereinafter referred to as Monalisa company), in Foshan, Guangdong Province.

Other party (the defendant in first instance, and the appellant in second instance): China National Intellectual Property Administration, in Beijing.

The disputed trademark in this case is No. 4356344 "M MONALISA and device" trademark, which was applied for registration by Guangdong Monalisa New Materials Group Co., Ltd. (hereinafter referred to as new materials company, the name being changed to Monalisa Group during the second instance) on November 10, 2004, approved for registration on September 14, 2008, and approved for use on goods in Class 11 including "lamps, cooking apparatuses, pressure cookers (autoclaves, electric, for cooking), bathroom (water closets), toilet bowls" and the like.

The cited trademark in this case is No. 1558842 "蒙娜麗莎 Mona Lisa" trademark, which was applied for registration by Guangzhou Modern Kangti Apparatus Co., Ltd on December 28, 1999, approved for registration on April 21, 2001, and approved for use on goods in Class 11 including "steam bath apparatus, Sauna bath installations, bath fittings" and the like. The cited trademark was assigned to building materials company and the bath ware company on April 18, 2012.

The trademark No. 1476867 "M MONALISA蒙娜麗莎 and device" was applied for registration by Nanhai Qiaodong Ceramics Co., Ltd on July 12, 1999, approved for registration on November 21, 2000, and approved for use on goods in Class 19 including "floor tiles, not of metal; ceramic tile; wall tiles, not of metal, for building; inlaid bricks, for building" and the like. The name of the trademark registrant was changed to the new materials company on June 28, 2011.

On March 30, 2012, the building materials company and the bath ware company filed a dispute application with the former Trademark Review and Adjudication Board (TRAB) of State Administration for Industry and Commerce against the disputed trademark, requesting to revoke the disputed trademark on the ground that the disputed trademark, the cited trademark, and the trademark No. 3541267 "monalisa and device", constituted similar trademarks on similar goods. On November 25, 2013, the TRAB issued the Shang Ping Zi [2013] No. 116692 ＜Decision on Trademark Dispute Against Reg. No. 4356344 "M MONALISA and Device"＞ (hereinafter referred to as the Sued Decision), which held that the goods including "cooking apparatuses, pressure cookers (autoclaves, electric, for cooking), bathroom (water closets), toilet bowls" approved for use by the disputed trademark and the goods approved for use by the cited trademark constitute similar goods. The disputed trademark and the cited trademark constitute similar trademarks used on the similar goods, which does not comply with the provision of Article 28 of the Trademark Law of the People's Republic of China revised in 2001 (hereinafter referred to as the Trademark Law). It was ruled that the disputed trademark should be revoked on goods including "cooking apparatuses, pressure cookers (autoclaves, electric, for cooking), bathroom (water closets), toilet bowls", and upheld on the remaining goods.

The new materials company was dissatisfied and instituted an administrative litigation. In the litigation, the new materials company explicitly requested that the registration on the two goods of "bathroom (water closets), toilet bowls" shall be upheld, and no longer request to uphold the registration on the other unapproved goods.

Beijing No.1 Intermediate People's Court held in the first instance that the trademark No. 1476867 is the basic trademark of new material Company, which is identical to the disputed trademark in terms of graphics and the pronunciation in English. The goods "ceramic tile" approved for use by the trademark No. 1476867 shall belong to the similar goods to the goods "bathroom (water closets), toilet bowls" approved for use by the disputed trademark. The trademark No. 1476867 was once recognized as a well-known trademark on the goods of "ceramic tile", and its commercial reputation can be extended in the disputed trademark. The disputed trademark and the cited trademark can be clearly distinguished in terms of their overall visual effect and do not constitute similar trademarks. It was decided that the Sued Decision shall be revoked and the TRAB shall make a new decision.

The TRAB, building materials company and bath ware company were dissatisfied, and appealed to the Beijing Higher People's Court. During the second instance, the name of the new materials company was changed to Monalisa Group. On June 8, 2016, the Beijing Higher People's Court made the following judgments in the second instance: the goods "bathroom (water closets), toilet bowls" approved for use by the disputed trademark and the goods including "steam bath apparatus, Sauna bath installations, bath fittings" and the like approved for use by the cited trademark do not constitute similar goods; the disputed trademark is significantly distinguished from the cited trademark in terms of the constituent elements and overall appearance of the marks, and the two do not constitute similar trademarks; the commercial reputation of the trademark No. 1476867 on "ceramic tile" goods can be extended in the disputed trademark, and the relevant public can distinguish the disputed trademark from the cited trademark on relevant goods and will not confuse or misidentify the source of goods. It was ordered to reject the appeal and uphold the original judgment. The building materials company and the bath ware company applied for retrial and the retrial request was rejected.

Trademarks involved in this case are as follows:

The performance process of procuratorial organ

The building materials company and the bath ware company were dissatisfied with the second instance judgment and applied for supervision to the People's Procuratorate of Beijing Municipality, which examined the case and submitted it to the Supreme People's Procuratorate for counter-appeal. On November 11, 2021, the Supreme People's Procuratorate lodged a counter-appeal to the Supreme People's Court, arguing that the determination of facts and application of laws in the second instance judgment of this case were both incorrect. The Supreme People's Court ordered the Beijing Higher People's Court to make a retrial. On June 14, 2022, the Beijing Higher People's Court ruled that the disputed trademark and the cited trademark constitute similar trademarks used on similar goods. The evidences submitted by the Monalisa Group are not sufficient to prove that the trademark No. 1476867 already had a high reputation when the application for registration of the disputed trademark of this case was filed. Moreover, the trademark No. 1476867 was registered on the goods in Class 19, which belongs to a different class of goods from the Class 11 of goods for which the disputed trademark and the cited trademark are approved for use, and the commercial reputation of different goods certainly cannot be extended to the other classes of goods. The evidences submitted by the Monalisa Group are also insufficient to prove that, based on the popularity of its trademark No. 1476867 on the goods of "ceramic tile", the disputed trademark can be objectively distinguished from the cited trademark on the goods of "bathroom (water closets), toilet bowls". Therefore, the registration of the disputed trademark on the goods of "(water closets), toilet bowls" does not comply with the provisions of Article 28 of the Trademark Law. The Beijing Higher People's Court revoked the second instance judgment and the first instance judgment of this case in the retrial, and rejected the litigation claims of Monalisa Group.

The case is the first administrative litigation supervision case in which the Intellectual Property Prosecution Office of the Supreme People's Procuratorate has filed a counter-appeal and successfully changed the judgment since its establishment.

Guiding significance

(I) The determination of similar goods and similar trademarks should be based on the core function of the trademark in distinguishing the source of goods or services, with emphasis on the examination and judgment as to whether it is likely to cause confusion or misidentification among the relevant public.

(II) The trademark registrant is entitled to the independent exclusive right to the different trademarks registered thereby, and the trademarks registered successively do not have the continuity relationship, and the application conditions for the continuity of the trademark registration should be strictly handled in juridical practice.

(III) In handling intellectual property cases, the procuratorial organ should generally conduct a search for similar cases. The search for similar cases is a search for legal instruments in force that are similar to the basic facts, points of contention and application of the law of the pending case, and the case should be handled with reference to the searched instruments of similar cases.

(Source of case: the Supreme People's Procuratorate)

Recently, The Patent Lawyer magazine, the core IP publication of CTC Legal Media, a world-renowned legal media, announced the ranking list of Top 10 Law Firms in 2023, and Unitalen Attorneys at Law was awarded "Top 10 Law Firms of 2023" in China for its high quality services and outstanding performance in the patent field.

The FICPI 21st Open Forum was held on October 4-7, 2023 in London, UK. Attorney Zhao Lei, Unitalen partner, was invited to attend the forum and delivered a speech as a panelist in the expert discussion session on the agenda of "Development of Multilateral Intellectual Property Treaties" on October 5.