The Intellectual Property Forum

Source： LIAONING BANDCN LAW FIRM  
written by :  Fangfang Wang
With the globalization of economic and the intense protect of intellectual property right (IPO) all over the

world, a trademark can be equally protected in many countries at the same time. Meanwhile, the labor

and material cost of the same product with the same trademark is different from county to country. When

a person, importing a product from low-cost country will be more easily dominates the market than the

domestic person owning trademark exclusive license with high expense.



Therefore, to gain more profit, many businessmen prefer to import low-cost product under the trademark,

under which disputes are likely to happen between the importers and the domestic persons who have

had exclusive trademark business license.



Then, Parallel import of trademark possibly comes up. Here, I’ll discuss how to deal with the infringement

on your right of trade exclusive license in China.



At first, Parallel import of trademark shall be defined. If a person legally imports a product with the same

trademarks as the one of the exclusive license of the domestic person without the consent of the person

having the ownership of trademark or the domestic person owning the right of trademark exclusive

license, the import activity is regarded as trademark parallel import.



In China, the Trademark Law and Against Unfair Competition protect the right of person who are obliges

of trademark or the domestic person who has exclusive license of trademark.



How to apply to these two laws to treat the disputes on the exclusive license of trademark?

According to Trademark Law and its relevant judicial interpretation, the person who has the exclusive

license of the trademark is entitled to wholly perform the right of the person who has the ownership of the

trademark.



Let’s make a example: now, you’re supposed as a person who has the exclusive license of trademark.

When you find the trademark parallel import activity of a importer, and then:



Choice A:  you can directly sue the importer of parallel import to the People’s Court that the importer

imports the product with the same trademark with yours without your consent.



According to Chinese rules of burden of proof, the defendant must provide plenary testimony to prove

that he has got the consent of obligees of trademark or the person owning the exclusive business

license.



If the defendant fails to prove, the court will make a decision for you .



Choice B:  you also can directly sue the importer of parallel import to the People’s Court according to

Against Unfair Competition Law.



At this time, you are responsible to assume the burden of proof, that’s to say, you must provide the

plenary testimony to prove that the defendant has carried out the unfair competition activity, otherwise,

you are absolutely loss your lawsuit.



To be honest, according to Against Unfair Law, the trademark parallel import is not within the scope of

the unfair competition activities, so it’s too hard to testify the importers has implemented unfair

competition activities.



If you fail to provide, the court will make a decision against you.



Finally, compared between Choice A and Choice B, if the person owning exclusive license of trademark

wants to prevent parallel import of trademark, in my opinion, the method of Choice A will be the best way.

Source： LIAONING BANDCN LAW FIRM  
written by :  Fangfang Wang
The sign of “TM” or “®”(hereinafter “R”) can ofen be seen on the left of the trademark, but the legal

meaning of two signs are different.



The letter “TM” is the abbreviation of trademark, while the letter “R” is the abbreviation of register.

The sign “TM” is just want to tell people that the letter or picture with “TM” is trademark of the product,

different from other letters or pictures of the product.



While “R” is to tell people, not only that the letter or picture with “TM” is trademark of the product, different

from other letters or pictures of the product, but also that the letter or picuture with “R” has been

approved and registered in State Trademark Office, that is to say, the owner of the trademark has the

exclusive right to use this trademark.



The sign”TM” comes from the United States. In the United States, people are allowed to use “TM” to

distinguish the letters or pictures of the product as their trademark. However, in China, there are no

regulations or laws to define the meaning of the sign of “TM”. With the growing importing products, the

meaning of “TM” , to distinuish the trademark, has been known by businessmen, and some domestic

companies has tried to use it.



But “R” are explicitly regulated in the Trademark Law in China, according to the law, only the trademark

which has been approve and registered in the State Trademark Office can be marked with “R”.

In a word, in China, all the trademarks including registered or non-registered can be marked with TM, but

only the trademark registered in the State Trademark Office can be marked with R. Only the owner of

trademark with “R” is entitled to execute the exclusive right to use this trademark, that's to say, any

person using the registered trademark without consent from the owner of trademark with “R” can be sued

over infringement.

-------The inventiveness of patent
Source： LIAONING BANDCN LAW FIRM   written by : Fangfang Wang
Inventiveness is one of the necessary conditions for patent right of invention and creation. The difference

between the invention-creation and public technology which is called the “novelty” is the first condition for

patent right, but the given degree of difference is also required by the Patent Law, that’s to say the

inventiveness of invention and utility model.



But what’s the inventiveness? How to judge whether the invention and creation has inventiveness?

According to Patent Law, Inventiveness means that, as compared with the technology existing before the

date of filing, the invention has prominent substantive features and represents a notable progress and

that the utility model has substantive features and represents progress.

So, prominent substantive features and a notable progress need to be owned by invention patent. The

utility model patent is also ordered to possess of substantive features and progress. The conditions of

inventiveness of invention patent are correspondingly higher than the ones of utility model. This passage

will focus on the invention patent and explain the inventiveness of invention patent.



According to Guideline of Investigation issued by State Intellectual Property Office, the invention with

prominent substantive features means the invention which the common technicists in the related field of

technology can’t produce on the basis of public technology by means of logistic analysis, illation and

limited examination.



The invention with a notable progress means the invention which can produce profitable technical effect

compared with public technology, such as overcoming defects of public technology, or making great

progress in comparison with public technology.



According to Implementing Regulations of the Patent Law of PRC, the technology used to be compared

with the invention of application is the technology which has been publicly disclosed in publications in the

country or abroad, or has been publicly used or made known to the public by any other means in the

country, before the date of filing. Unlike investigation of novelty, the inventiveness of invention of

application shall be judged in comparison only with public technology, not including the conflicting

application said in the last passage.



The inventiveness shall be judged by the common technicists in the related field of technology. During

the investigation of inventiveness, although the conclusion is made by investigators, investigators make

this conclusion on the basis of the knowledge and ability of the common technicists in the related field of

technology, but not of the investigators themselves. The common technicists in the related field of

technology are introduced by the Patent Law with the aim to pursue fair and objective investigation.

Generally, the said common technicists are supposed to be the technicists with common technology who

are able to acquire the public technology and to do some routine experiments, but not the experts in this

field of technology.



The following steps shall be obeyed when you judge whether your invention of application has

inventiveness required by Patent Law:



First, to find out the most similar public technology ; Second, to find out which technical problem your

invention can work out and compare your invention with the most similar public technology; Third, to

judge whether your invention of application is obviously or easily to be obtained by the common

technicists in the related field of technology.



Regarding with a notable progress, compared with the inventiveness, it’s easier to judge the notable

progress which mainly focus on the profitable technical effects or makes great progress. In the following

situations, the invention is deemed to have a notable progress:

First, compared with public technology, the invention of application are able to produce better technical

effects, such as, quality improvement, quantity increase, energy saving, environment pollution

prevention.



Second, the invention of application provides another different technical proposal, and the technical

effects basically arrive at the level of public technology.



Third, the invention of application stands for the new trend of some new technology.

Fourth, although the invention of application has some negative effects, the other aspects of the

invention possess of notable active technical effects.



This passage mainly introduces and analyzes the principia obeyed when judging the inventiveness of

your invention of application, the next passage will give you some good and operable methods to help

you to judge the inventiveness of you invention of application.

written by : Fangfang Wang  from LIAONING BANDCN LAW FIRM
When you find others copy your unique design of web page withour your permission, you, as owner of

copyright of this web page, shall protect your rights and interests as follows in China:



Firstly, basic knowledge you should know: according to Copyright Law of PRC, the designer of web page

are authorized to be the owner of the copyright and his copyright shall be protected, that’s to say, if

others copy his works without his permission, he is entitled to sue the persons copying his works to the

court over the infringement on his copyright.



Secondly, burden of proof in the infringement over the copyright. You, as the owner of the copyright of

works, have to prove that you are the owner of the web page and others now are using your works.

Therefore, once you find others copying your works, you’d better collect all the attainable evidence as

soon as possible by means of taking photograph, kinescoping, ect, which may enable you on the active

position.



Thirdly, if you, as the owner of the works, have some difficulty in collecting evidence, the relevant law

grant you the right to apply to people’s court to carry out compulsory preservation of evidence.

Fourthly, after you has submitted your complaint, you are authorized to apply to people’s court to require

others copying your works to stop the action of infringement, make an apologize and eliminate the

negative effect.



Finally, the standard for counting the damages of compensation. Your damages of compensation shall

be counted in accordance with how much loss you suffered；If you failed to prove how much loss you

suffered, the second standard of counting is how much illegal profits the persons copying your works

gainned from action of; If the above-said two standards are too difficult to be proved, people’s court will

require the others copying your works compensate ￥50,000 at most in line with the actual polt of

infringement.



Knowing the above five points well, you are able to protect your web page timely and effectively.