1. Two Cases of Unauthorized Use of Well-known Commodity-Specific Packaging and Decoration between Guangdong Jiaduobao Drink & Food Co., Ltd. and Guangzhou Wanglaoji Health Industry Co., Ltd., Guangzhou Pharmaceutical Group Co., Ltd. (Supreme People's Court (2015) Min San Zhong Zi No. 2 and 3 Civil Judgments);

2. Case of Patent Infringement Dispute Administrative Processing between Xixia Longcheng Special Material Co., Ltd. and Yulin Intellectual Property Office, Shaanxi Coal and Chemical Industry Group - Shenmu Tianyuan Chemical Co., Ltd. (Supreme People's Court (2017) Supreme Law Xing Zai No. 84 Administrative Judgment); 3. Case of Dispute over Infringement of Trademark Right between Fuzhou Rice Mill and Wuchang Jinfutai Agricultural Co., Ltd., Fujian New HUA DU Supercenter Co., Ltd. - Fuzhou Jinshan Dajingcheng Branch, Fujian New HUA DU Supercenter Co., Ltd. (Supreme People's Court (2016) Supreme Law Min Zai No. 374 Civil Judgment); 4. Case of Administrative Dispute over Invalidation of Patent for Invention between Patent Reexamination Board of The State Intellectual Property Office and Beijing Wansheng Pharmaceutical Co., Ltd., Daiichi Sankyo Company Limited (Supreme People's Court (2016) Supreme Law Xing Zai No. 41 Administrative Judgment); 5. Case of Dispute over Infringement of Trademark Right and Unfair Competition between Commercial Press International Co., Ltd. and Sinolingua (Beijing Intellectual Property Court (2016) Jing 73 Min Chu No. 277, Civil Judgment); 6. Copyright Ownership, Copyright Infringement Dispute Case between Weining SHEN, Danyan SHEN, Maiheng SHEN, and Nanjing Classic Auction Co., Ltd., Hui ZHANG (Nanjing Intermediate People's Court of Jiangsu Province (2017) Su 01 Min Zhong No. 8048 Civil Judgment); 7. Case of Dispute over Infringement of Trademark Rights between Jaguar Land Rover Co., Ltd. and Guangzhou Fenli Foods Co., Ltd., Mingzheng WAN (Guangdong Higher People's Court (2017) Yue Min Zhong No. 633 Civil Judgment); 8. Case of Dispute over Infringement of Right to New Varieties of Plants between Sichuan Zhongzheng Technology Co., Ltd. and Agricultural Science Research Institute of Bobai County in Guangxi Zhuang Autonomous Region, Tengjin WANG, Zhenzhuo LIU, Sichuan Zhongsheng Technology Seed Co., Ltd. (Guangxi Zhuang Autonomous Region Higher People’s Court (2017) Gui Min Zhong No. 95 Civil Judgment); 9. Case of Dispute over Infringement of Commercial Secrets between Hebi Reflective Material Co., Ltd. and Junchao SONG, Hebi Ruimingte Technology Ltd., Jianfa LI (Henan Higher People’s Court (2016) Yu Min Zhong No. 347 Civil Judgment); and 10. Crimes of Infringement of Copyright in Beijing Yicha Infinite Information Technology Co., Ltd. and Dong YU (Shanghai Pudong New Area People’s Court (2015) Pu Xing (Zhi) Chu Zi No. 12 Criminal Judgment).

Introduction to the Top 10 Intellectual Property Cases of Chinese Courts in 2017

1. Case of Dispute over Well-known Commodity-Specific Packaging and Decoration between Wanglaoji and Jiaduobao

Two Cases of Unauthorized Use of Well-known Commodity-Specific Packaging and Decoration between Guangdong Jiaduobao Drink & Food Co., Ltd. and Guangzhou Wanglaoji Health Industry Co., Ltd., Guangzhou Pharmaceutical Group Co., Ltd. (Supreme People's Court (2015) Min San Zhong Zi No. 2 and 3 Civil Judgments) [Brief Facts] On July 6, 2012, Guangzhou Pharmaceutical Group Co., Ltd. (hereinafter referred to as “Guangzhou Pharmaceutical Group”) and Guangdong Jiaduobao Drink & Food Co., Ltd. (hereinafter referred to as "JDB") submitted a case to the court, respectively, and claimed to enjoy rights and interests of well-known commodity (Red-canned Wanglaoji Herbal Tea)-specific packaging and decoration, and accordingly accused the packaging and decoration of herbal tea products canned in red produced and sold by the opponent had constituted infringement. The court of first instance held that the rights and interests of “Red-canned Wanglaoji Herbal Tea” packaging and decoration should be enjoyed by the Guangzhou Pharmaceutical Group, and the herbal tea canned in red produced and sold by Guangzhou Wanglaoji Health Industry Co., Ltd. (hereinafter referred to as “Health Company”) authorized by the Guangzhou Pharmaceutical Group constituted no infringement. Since the JDB did not enjoy the rights and interests of the involved packaging and decoration, its production and sales of red-canned herbal tea with "Wanglaoji" on one side, "Jiaduobao" on one side and "Jiaduobao" on two sides constituted infringement together. The court of first instance thus ordered the JDB to cease the acts of infringement, publish statements to eliminate ill effects, and compensate the Guangzhou Pharmaceutical Group for economic losses of 150 million RMB and reasonable rights protection costs of more than 260,000 RMB. At the same time, the JDB’s pleadings were rejected. The JDB appealed to the Supreme People's Court due to dissatisfaction of decision in the first instance of the two cases. The final judgment of the Supreme People's Court held that the well-known commodity in this case was "Red-canned Wanglaoji Herbal Tea" and included "the entire content containing yellow characteristics of Wanglaoji, red ground color and other colors, patterns and its permutations and combinations and other components" on cans of the red-canned Wanglaoji herbal tea products, which was a specific packaging and decoration for well-known commodities. Both the Guangzhou Pharmaceutical Group and the JDB claimed to have rights and interests of the specific packaging and decoration of red-canned Wanglaoji herbal tea. Accordingly, the Supreme People's Court held that taking into consideration the historical development process of the red-canned Wanglaoji herbal tea, the cooperation background of the parties, the consumers’ cognition as well as the principle of fairness, the Guangzhou Pharmaceutical Group and its predecessor, the JDB and its affiliates had played an active role in the formation, development, and goodwill establishment in rights and interests of the specific packaging and decoration involved, if the rights and interests of the specific packaging and decoration involved were completely awarded to one party, it would result in a unfair outcome and may harm the public interest. Therefore, the rights and interests of the specific packaging and decoration of the well-known commodity involved can be shared by the Guangzhou Pharmaceutical Group and the JDB under the premise of following the principle of good faith and respecting the consumer's cognition without damage to legitimate rights and interests of others. On this basis, the claims that the Guangzhou Pharmaceutical Group and the JDB accused each other that producing and selling, by the opponent, herbal tea products canned in red constituted unauthorized use of other's well-known commodity-specific packaging and decoration were found untenable, and the pleadings of the Guangzhou Pharmaceutical Group and the JDB were rejected. [Typical Significance] The Supreme People's Court held open trials and sentenced two cases of disputes over packaging and decoration between Wanglaoji and Jiaduobao, which had attracted much attention from the news media and the public. After the two cases were sentenced, mainstream media such as the People’s Daily, China Central Television, and Xinhua News Agency reported it for the first time. The public highly praised the Supreme People's Court's decision of “gaining a win-win result with the rule of law” that highlighted “judicial wisdom”. Also, the domestic and foreign media highly affirmed the guiding effect of the judgment in this case on the trial of similar cases, and believed the case to be of great significance. At the same time, the judgment released a positive signal of “equal protection of distinct property rights” and promoted continuous development of the industry, which has been recognized by all circles of the society. In addition, the judgment results of the two cases were also respected by the parties and a unification of legal effects and social effects was achieved.

2. Patent Infringement Dispute Administrative Processing Case concerning "Yulin Office"

Case of Patent Infringement Dispute Administrative Processing between Xixia Longcheng Special Material Co., Ltd. and Yulin Intellectual Property Office, Shaanxi Coal and Chemical Industry Group - Shenmu Tianyuan Chemical Co., Ltd. (Supreme People's Court (2017) Supreme Law Xing Zai No. 84 Administrative Judgment) [Brief Facts] Xixia Longcheng Special Material Co., Ltd. (hereinafter referred to as "Xixia") requested Yulin Intellectual Property Office (hereinafter referred to as "Yulin Office") for administrative processing on the grounds that the apparatus manufactured and used by Shaanxi Coal and Chemical Industry Group - Shenmu Tianyuan Chemical Co., Ltd. (hereinafter referred to as "Tianyuan") infringed on the utility model patent right of "Internal-coal External-heating Coal Material Decomposition Apparatus" (i.e., the involved patent). On September 1, 2015, Yulin Office made Yu Zhi Fa Chu Zi (2015) No. 9 “Decision on Settlement of Disputes over Patent Infringement” (hereinafter referred to as "Sued Administrative Decision"), and determined that Tianyuan did not constitute infringement of the involved patent. Members of a collegiate panel for the Sued Administrative Decision included Hongdong GOU, staff member of Baoji Intellectual Property Office, however, there existed no official document that ordered him to join the administrative settlement of the involved dispute, and the oral proceedings of the Yulin Office did not record that the formal identity of Hongdong GOU and the reason why he joined the collegiate panel were notified to Xixia and Tianyuan. In addition, the Yulin Office held two oral hearings on infringement disputes over the involved patent. In the second oral hearing, the members of the collegial panel informing the parties were distinct from the members of the collegial panel who gave signatures on the Sued Administrative Decision. The Xixia refused to accept the Administrative Decision and filed an administrative lawsuit. The first-instance court held that an administrative law enforcement officer scheduling within the system was an internal action of the administrative agency, and did not violate the internal exchange system. In view of shortage of the existing staff in the Yulin Office, after consulting the Shaanxi Provincial Intellectual Property Office, it was not improper for the officer from the Baoji Intellectual Property Office to participate in settlement of the case, and making the Sued Administrative Decision did not breach the statutory procedures. The Sued Administrative Decision was not improper in determination of the infringement entity, so rejection of the Xixia's pleadings was sentenced. The Xixia disagreed on the judgment and proceeded with an appeal. The second-instance court dismissed the appeal and affirmed the original judgment. The Xixia was still dissatisfied and applied to the Supreme People's Court for retrial. After reviewing the case, the Supreme People's Court held that making the Sued Administrative Decision breached the legal procedures and should be revoked. First of all, when handling the infringement dispute over the involved patent of equal civil subjects, the Yulin Office was actually in the adjudication status. It should adhere to procedural principles of rigorousness, normalization, openness and equality. However, in the circumstance where the member of the collegial panel was explicitly changed, the member signed his name on the Sued Administrative Decision, which constituted a serious and explicit violation of the statutory procedure. Next, the collegial panel of the Yulin Office who made the Sued Administrative Decision should consist of officers who are qualified for patent administrative enforcement, otherwise, the normalization and seriousness of administrative law enforcement procedures can not be guaranteed, which is neither conducive to normalization of administrative law enforcement activities, nor to reinforcement of administrative law enforcement responsibilities. The so-called replies from the Coordination Protection Department of the Shaanxi Provincial Intellectual Property Office submitted by the Yulin Office were actually an internal request written by the Department to the leader of the Office, in which there was neither a symbol nor an official seal. The "Reply on Scheduling Law Enforcement Personnel in Individual Cases" the Patent Management Division of the State Intellectual Property Office issued to the Shaanxi Provincial Intellectual Property Office was later than the time when the Sued Administrative Decision was made. And it was not directly associated with this case in terms of content. Neither can it serve as a legal and valid basis for Hongdong GOU to participate in the collegial panel for the Sued Administrative Decision. Further, although the Yulin Office declared to inform the parties of the specific identity of Hongdong GOU and the reason why he joined the collegiate panel during the oral hearing, the evidence submitted by the Office cannot demonstrate the claim, whether the parties accepted the membership of the collegial panel was not preconditions and requirements to determine the legality of the Sued Administrative Action procedures. Therefore, the proposal “Xixia had no objection to the membership of the collegial panel, and therefore the procedure was legal” made by the Yulin Office and Tianyuan was found untenable. [Typical Significance] This case involves identification and handling of procedural violations in the administrative enforcement of the patent. The Supreme People's Court made it clear that the members of the collegial panel who was explicitly changed gave signatures on Sued Administrative Decision, which is in essence equivalent to "no decision is made by the judge and no trial is conducted by the arbiter" and severely breaches the statutory procedures. In principle, the collegial panel that makes the Sued Administrative Decision shall consist of officers who are qualified for patent administrative enforcement. Even if the law enforcement personnel are deployed from another place, formal and complete formalities should be followed. The judgment in this case has effectively normalized and promoted administrations of administrative organs in accordance with the law, highlights a leading role of judicial protection of intellectual property rights, and is a typical case that fully implements "Enhancing Judicial Reviews of Administrative Actions of Intellectual Property Rights" proposed in "Opinions on Several Issues Concerning Strengthening of Reform and Innovation in the Field of Intellectual Property Adjudication", and is of great significance for promoting construction of legal system and optimizing legal environment of scientific and technological innovation in the intellectual property field.

3. "Daohuaxiang" Trademark Infringement Dispute Case

Case of Dispute over Infringement of Trademark Right between Fuzhou Rice Mill and Wuchang Jinfutai Agricultural Co., Ltd., Fujian New HUA DU Supercenter Co., Ltd. - Fuzhou Jinshan Dajingcheng Branch, Fujian New HUA DU Supercenter Co., Ltd. (Supreme People's Court (2016) Supreme Law Min Zai No. 374 Civil Judgment) [Brief Facts] Fuzhou Rice Mill is a patentee of the No. 1298859 registered trademark (namely, the involved trademark) of "DAOHUAXIANG". The involved trademark was applied in March 1998, registered on July 28, 1999, and the approved product was Class 30 of rice. On March 18, 2009, the "Certificate for Examination of Crop Varieties in Heilongjiang Province" issued by Heilongjiang Crop Variety Examination Committee recited that a denomination of a variety was "Wuyoudao 4" with the original designation of "Daohuaxiang 2" and transplanted and cultivated in a promotion area of plain artesian irrigation area, Wuchang, Heilongjiang Province. The variety subjected to regional tests and production tests met conditions for popularization of good varieties, and it was decided that the variety had been promoted since 2009. On February 18, 2014, the Fuzhou Rice Mill purchased a bag of rice tagged "Qiao Family Courtyard Daohuaxiang Rice" produced and sold by Wuchang Jinfutai Agricultural Co., Ltd., (hereinafter referred to as "Wuchang") from Fujian New HUA DU Supercenter Co., Ltd. - Fuzhou Jinshan Dajingcheng Branch (hereinafter referred to as "Dajingcheng Branch") following a procedure of notary. The front center position of the rice packaging bag was marked in large font with "DAOHUAXIANG (outline font, black background)". The Fuzhou Rice Mill filed a lawsuit on the grounds that the sued infringing products produced and sold by Wuchang, and sold by Dajingcheng Branch and New HUA DU infringed on its trademark rights. The first-instance court held that "DAOHUAXIANG" did not constitute a common name, the Wuchang used the logo pretty similar to the involved trademark on the product packaging bag without permission, which would easily mislead consumers and infringed on the trademark right involved. It was thus affirmed that the actions of the Wuchang, the Dajingcheng Branch and the New HUA DU constituted infringement. The second-instance court held that the "DAOHUAXIANG" rice produced based on this particular geographic planting environment in Wuchang was a customary name. The Wuchang uses “DAOHUAXIANG” characters and pinyin on the rice product packaging it produces and sells to indicate the origin of rice varieties, which is subjectively well-intentioned and objectively causes no confusion and misrecognition, and is properly used. Accordingly, the original sentence was changed to revoke the verdict of the first instance and reject all claims from the Fuzhou Rice Mill. The Fuzhou Rice Mill refused to accept the verdict and applied to the Supreme People's Court for retrial. After reviewing the case, the Supreme People's Court held that the Wuchang had no evidence to demonstrate that "DAOHUAXIANG" was a legal common name. The common name prescribed in the method for examining crop varieties and the common name in the sense of the trademark law are not exactly the same, it cannot determine that the name belongs to the common name in the sense of trademark law based solely on the name in the examination announcement. The original code of the examination announcement was "DAOHUAXIANG No. 2" other than "DAOHUAXIANG". In the case where the trademark right involved had been previously registered, it was impossible to directly demonstrate that "DAOHUAXIANG" was a legal common name. The Supreme People's Court thus decided to revoke the judgment of the second instance and upheld the judgment of first instance. [Typical Significance] This case concerns issues such as a relationship between an exclusive right of a registered trademark and names of varieties, and criteria for determining a common name. The “DAOHUAXIANG No. 2” involved herein is an excellent rice variety in Wuchang region of Heilongjiang that is a major food production area in China. The trial of the case was widely concerned by the industry and the processing results were directly related to the normal production and management activities of such a rice variety as “DAOHUAXIANG No. 2” and normalization of market orders. The Supreme People's Court clarified the criteria for adjudication of such cases by elaboration on some important legal issues in trademark law, such as judgment standards of legal common names and customary names, as well as the differences and linkages between the exclusive right of the registered trademark and the names of varieties, which preferably balances benefit-based relationships between the registered trademark right holder and the user of the variety name, and on the premise of fully protecting the trademark right, a fair and orderly market competition order is maintained.

4. Case of Administrative Dispute over Invalidation of Patent having "Markush-type Claims"

Case of Administrative Dispute over Invalidation of Patent for Invention between Patent Reexamination Board of The State Intellectual Property Office and Beijing Wansheng Pharmaceutical Co., Ltd., Daiichi Sankyo Company Limited (Supreme People's Court (2016) Supreme Law Xing Zai No. 41 Administrative Judgment) [Brief Facts] Daiichi Sankyo Company Limited is a right holder of a patent for invention (namely, the involved patent) entitled "Process of Preparation of Pharmaceutical Composition for Treating or Preventing Hypertension". The claims of the involved patent are drafted in a Markush form. Beijing Wansheng Pharmaceutical Co., Ltd. (hereinafter referred to as “Wansheng”) submitted a Request for Invalidation to the Patent Reexamination Board of the State Intellectual Property Office (hereinafter referred to as "Patent Reexamination Board") on the grounds that the involved patent had no inventiveness. On August 30, 2010, the Daiichi Sankyo Company Limited amended the claims, including removal of the wordings "or ester" in the "or its pharmaceutically acceptable salt or ester" in claim 1; removal of "alkyl group having 1 to 6 carbon atoms" as defined for R4 in claim 1; and removal of other technical solutions than the carboxyl group and the formula COOR5a as defined for R5 in claim 1. The Patent Reexamination Board informed the Daiichi Sankyo Company Limited during the oral proceedings of approval of the removal of "or ester" in claim 1, but the remaining amendments did not conform to the relevant provisions of Rule 68 of the Implementing Regulations of the Chinese Patent Law. The amended document was not accepted. There was no objection from the Daiichi Sankyo Company Limited and the Wansheng Pharmaceutical Co., Ltd. on that. On January 14, 2011, the Daiichi Sankyo Company Limited submitted a set of replacement sheets of the amended claims in which the "or ester" in claim 1 was removed. The Patent Reexamination Board made a No. 16266 Examination Decision on Request for Invalidation (hereinafter referred to as “No. 16266 Decision”), and held that the claim 1 of the involved patent was not obvious relative to Evidence 1, had inventiveness and conformed to the provisions of Article 22, paragraph 3 of the Chinese Patent Law. Accordingly, on the basis of the amended document submitted by the Daiichi Sankyo Company Limited on January 14, 2011, the validity of the involved patent right was upheld. The Wansheng was dissatisfied and filed an administrative lawsuit. The first-instance court held that it was not improper for the Patent Reexamination Board to refuse to accept the amended document submitted by the Daiichi Sankyo Company Limited on August 30, 2010, on the grounds that it did not breach the provisions of Rule 68 of the Implementing Regulations of the Chinese Patent Law. The claim 1 of the involved patent was not obvious relative to the Evidence 1, and thus had inventiveness. Accordingly, the No. 16266 Decision was sentenced to be upheld. The Wansheng was dissatisfied and filed an appeal. The court of second instance held that Markush-type claims belonged to special types of parallel technical solutions. The amended document submitted by the Daiichi Sankyo Company Limited on August 30, 2010 narrowed the protection scope of the involved patent right and conformed to the provisions of Rule 68, paragraph 1 of the Implementing Regulations of the Chinese Patent Law. The effect of a specific embodiment covered by the claims of the involved patent was equivalent to the technical effect of the Example 329 of the prior art (Evidence 1). Therefore, the claim 1 of the involved patent did not achieve any unexpected technical effect, and had no inventiveness. Thus, the first-instance judgment and the No. 16266 Decision were sentenced to be revoked, and the Patent Reexamination Board was ordered to make a new Decision. The Patent Reexamination Board was dissatisfied and applied to the Supreme People's Court for retrial. The Supreme People's Court ruled that after the review of this case, the second-instance judgment was revoked and the first-instance judgment was upheld. The Supreme People's Court held that the compound claims drafted in the Markush form should be understood as a general technical solution rather than a collection of numerous compounds; the principle for which the amendments to Markush-type claims are allowed should be that a class or individual compound with new properties and effects cannot be produced due to amendments, whereas the individual factors must be taken into full consideration at the same time; the determination of inventiveness of the compound claims drafted in Markush form should follow the basic method of determination of inventiveness, i.e., "three-step process" as stipulated in Guidelines for Patent Examination. Unexpected technical effects are an auxiliary factor for determination of inventiveness. It is typically inappropriate to directly apply unexpected technical effects across the "three-step process" to determine whether a patent application has inventiveness or not. [Typical Significance] This case involves issues such as the natures of Markush-type claims, the principles of amendments in invalidation procedures, and the methods of determination of inventiveness. Markush-type claims are drafted in a special manner in the field of medicinal chemistry for patent of invention. Based on their unique general functions, their applications in this field are increasingly widely used. The natures of Markush-type claims, the principles of amendments, and the criteria of determination of inventiveness directly affect application and authorization of a large number of technical solutions of chemical and pharmaceutical patents, and have always been highly concerned by the industry and academia. In this case, the Supreme People's Court made it clear that the natures of Markush-type claims are general rather than collective in compound, and the amendments to the Markush-type claims should be based on that a class or individual compound with new properties and effects cannot be produced. Determining the inventiveness of the compound claims drafted in Markush form should still follow the "three-step process". In this case, the definition and clarification of the above-mentioned important legal rules have guiding significance for the drafting and review of patent applications in the field of medicinal chemistry.

5. "Xinhua Dictionary" Trademark Infringement and Unfair Competition Dispute Case

Case of Dispute over Infringement of Trademark Right and Unfair Competition between Commercial Press International Co., Ltd. and Sinolingua (Beijing Intellectual Property Court (2016) Jing 73 Min Chu No. 277, Civil Judgment) [Brief Facts] Since 1957, Commercial Press International Co., Ltd. (hereinafter referred to as “Commercial Press”) has continuously published Xinhua Dictionary in popular versions to the 11th edition. From 2010 to 2015, the Xinhua Dictionary published by the Commercial Press had an average share of over 50% in the dictionaries market. Up to 2016, the Xinhua Dictionary had been published by the Commercial Press with a global circulation of more than 567 million, had gained the Guinness world record of “Most Popular Dictionaries” and the Guinness world record of “Best-Selling Book (Regularly Revised)”. The Commercial Press accused the Sinolingua (hereinafter referred to as “Sinolingua”) of violation of the unregistered well-known trademarks of “Xinhua Dictionary” of the Commercial Press due to production and sale of “Xinhua Dictionary”, and using, by the Sinolingua, the specific packaging and decoration of well-known commodities of the Xinhua Dictionary (11th edition) of the Commercial Press had constituted a unfair competition, and the Commercial Press requested the court to order it to immediately cease the acts of infringement of trademark rights and unfair competition, eliminate ill effects and compensate for economic losses. The first-instance court held that the “Xinhua Dictionary” had a specific historical origin, development process, and a long-term unique provider and an objective market pattern, maintained the product name having mixed attributes of products and brands, had formed a stable recognition among the relevant consumers, had the significance and role of indicating the origin of the goods and had the distinctive features of the trademark. The "Xinhua Dictionary" has been widely known by the relevant public throughout the country and has gained greater influence and higher popularity. It can be determined that the "Xinhua Dictionary" is exactly an unregistered well-known trademark. The Sinolingua constitutes infringements that copying unregistered well-known trademarks of others by using the “Xinhua Dictionary” in the dictionary. The texts, patterns, colors, and their permutations and combinations embodied in the packaging and decoration used in the Xinhua Dictionary (11th edition) play roles of identifying and distinguishing sources of commodities, and have uniqueness. Use of a similar packaging and decoration design by the Sinolingua on dictionaries is adequate to allow for the relevant public to confuse and misrecognize the source of the commodities, and constitute unfair competition as stipulated under Article 5(2) of the Anti-unfair Competition Law. Thus, the court of first instance ordered the Sinolingua to immediately cease the acts of infringement, eliminate ill effects, and compensate the Commercial Press for economic losses of 3 million RMB and reasonable expenditures of 270,000 RMB. [Typical Significance] This case is a typical case involved in the protection of unregistered well-known trademarks, in complex issues such as identification of facts, application of laws and balancing of interests. This case sets a judgmental criterion to determine whether the commodity title of the “Xinhua Dictionary” with the mixed attributes of products and brands possesses distinctive features of trademarks. Considering multiple factors, such as the relevant public's knowledge of the “Xinhua Dictionary”, the duration of use of the “Xinhua Dictionary”, the number of sales, the scope of publicity, and the protected records, it was determined that the “Xinhua Dictionary” of the plaintiff (the Commercial Press) constituted an unregistered well-known trademark. When the unregistered well-known trademark of “Xinhua Dictionary” is protected, it should also pay attention to the relationship between balancing its relationship with normal business and management order in the publishing industry and promoting dissemination of knowledge and culture. The Decision clearly pointed out that exclusive use rights of trademarks under the trademark law protect the trademark itself other than the product to which the trademark is attached. The Commercial Press is given rights to exclusively use the “Xinhua Dictionary” trademark, which does not give other published dictionaries exclusive rights, and thus no monopoly takes place in the dictionary industry. By way of providing a trademark protection, the trademark rights holders are urged to better assume the statutory obligations of product quality assurance and the social responsibilities of disseminating knowledge, which helps promote the normatively and orderly development of the publishing industry.

6. “Mao Dun Manuscript” Copyright Dispute Case

Copyright Ownership, Copyright Infringement Dispute Case between Weining SHEN, Danyan SHEN, Maiheng SHEN, and Nanjing Classic Auction Co., Ltd., Hui ZHANG (Nanjing Intermediate People's Court of Jiangsu Province (2017) Su 01 Min Zhong No. 8048 Civil Judgment) [Brief Facts] Mr. Mao Dun submitted to the magazine agency in 1958 a review article "Short Story of Brief Talking about These Days" written in a brush, which was published in "People's Literature", No. 6, 1958. The original manuscript was held by Hui ZHANG. On November 13, 2013, Hui ZHANG commissioned Nanjing Classic Auction Co., Ltd. (hereinafter referred to as “Classic Auction”) to auction multiple items, including the manuscript involved. On December 30, 2013, the Classic Auction took photos and uploaded high-definition digital photos of the manuscripts involved by means of digital cameras, presented and introduced the manuscript on its website and Weibo in a graphic and textual manner. In the case where the public browse its website, they can see the whole picture of the manuscript involved, and can also observe local details of each page of the manuscript through the magnifying glass function of the web page. During the preview, the Classic Auction not only displayed the original works involved, but also provided the visitors with a brochure on which auction items were printed. On January 5, 2014, the manuscript involved was auctioned at the fall auction of Chinese paintings of the Classic Auction in 2013. The outsider was bidding for the manuscript involved at a price of 10.5 million RMB. However, the auction was not completed as the auctioneer made no payment, and hence the original manuscript was still held by Hui ZHANG. After the auction, the Classic Auction still continued to present the manuscript on the Internet and did not remove it until June, 2017. Weining SHEN, Danyan SHEN, Maiheng SHEN are legal heirs of Mr. Mao Dun, and they believed that Hui ZHANG and the above-mentioned actions of the Classic Auction infringed on the copyright of the manuscript involved, and therefore appealed to the court. The court of first instance ordered the Classic Auction to cease the acts of infringement on the right to disseminate manuscript information online, and compensate Weining SHEN, Danyan SHEN, Maiheng SHEN for economic losses of 100,000 RMB. Weining SHEN, Danyan SHEN, Maiheng SHEN were dissatisfied with the first instance judgment and instituted an appeal. The court of second instance held that the manuscript involved was both literary works and art works. Hui ZHANG was the legal owner of the manuscript involved and had the right to choose disposal of his legal property by way of auction. Hui ZHANG’s actions did not infringe on the copyright of the manuscript involved. The Classic Auction has infringed on the rights to publish, reproduce, and disseminate information on the art works of the manuscripts involved, and shall bear the responsibilities of infringement, such as cease of infringement, apology, and compensation for losses. The court of second instance judged that the Classic Auction publicly apologized to Weining SHEN, Danyan SHEN, Maiheng SHEN and compensated for economic losses of 100,000 RMB. [Typical Significance] This case is involved in relationship of rights and obligations of relevant subjects in the cross-regulatory zones of copyright law, property law, and auction law in auction activities of the art works. The judgment balanced the legal rights of property owners and copyright owners, and clarified the auctioneer's intellectual property protection obligation. The judgment pointed out that in the case where the copyright and the property rights of the art works are separated, the owner of the original art works exercised his/its rights of disposition, income, and exhibition according to law, which are protected by law and the copyright holder has no right to interfere. However, the owner of the original art works must exercise the property right without damage to the legal rights of the copyright holder of the works. As an auctioneer entrusted by the property owner, an auction company shall bear reasonable duty of care of protecting the copyright, in addition to the duty of care of protection of property rights, regularly and diligently perform auction activities, and prudently avoid the copyright owner’s rights and interests. The judgment defined the boundaries of different subject rights, reflected the judicial spirit of protecting the balance of the legal rights and interests of property owners and copyright owners, and determined the auction company's duty of care in accordance with the reasonable standards of dutiful auctioneers, fully highlighted the judicial orientation strictly protected.

7. “Land Rover” Trademark Infringement Dispute Case

Case of Dispute over Infringement of Trademark Rights between Jaguar Land Rover Co., Ltd. and Guangzhou Fenli Foods Co., Ltd., Mingzheng WAN (Guangdong Higher People's Court (2017) Yue Min Zhong No. 633 Civil Judgment) [Brief Facts] Land Rover’s affiliates applied for registration of No. 808460 “”, No. 3514202 “路虎”, as well as No. 4309460 “LANDROVER” trademarks in China in 1996, 2004, and 2005, all of which were approved for use on the 12th class of “Land Motor Vehicles” and had a higher reputation, and were transferred to Land Rover later. Guangzhou Fenli Foods Co., Ltd. (hereinafter referred to as “Fenli”) advertises and sells its “LAND ROVER Vitamin Beverages” on its website and in its physical stores. The accused marks used on the related products, packaging boxes, and web pages include “路虎” and “LANDROVER”. "Landrover 路虎" and "路虎 LandRover" arranged above and below. Fenli had applied for registration of "路虎 LANDROVER" trademark in 2010 on the 30th "non-medicinal nutrition liquid" and 32nd "non-alcoholic beverage" products, but none of them were approved for registration. Land Rover filed a lawsuit on the grounds that Fenli’s actions constituted infringement. The court of first instance ordered the Fenli to stop the infringement and compensate the Land Rover for economic losses and reasonable rights protection expenditures of 1.2 million RMB. The court of second instance held that the evidences submitted by the Land Rover were sufficient to prove that the trademark involved has been widely known to the public in China and has already been well-known. The accused infringement acts weakened the distinctiveness and goodwill of the Land Rover’s well-known trademark involved and damaged the interests of the Land Rover and should be stopped. As a result, the appeal was rejected and the original judgment was affirmed. [Typical Significance] This case is a typical case involved in cross-class protection of well-known trademarks and intensification of intellectual property protection. In addition to embodying the basic principles of “on-demand determination” and “case by case determination” that should be followed in cases of well-known trademark protection, the specificity in this case is that the Fenli implemented rush registrations of trademarks relating to well-known enterprises and well-known figures more than once, in addition to the accused infringement identification in this case, the infringement acts had an obvious subjective evil intention. In the section on determining the amount of compensation, the judgment in this case discussed the facts and legal basis for determining the amount of compensation of 1.2 million RMB in a comprehensive and detailed manner, which demonstrates the judicial attitude of stopping malicious hoarding of trademarks. This case has a good ruling guide and demonstration effect in aspects of increasing the protection of well-known trademarks, regulating malicious rush registrations of trademarks and guiding the public to respect intellectual property rights.

8. "Bo III You" Plant Variety Infringement Dispute Case

Case of Dispute over Infringement of Right to New Varieties of Plants between Sichuan Zhongzheng Technology Co., Ltd. and Agricultural Science Research Institute of Bobai County in Guangxi Zhuang Autonomous Region, Tengjin WANG, Zhenzhuo LIU, Sichuan Zhongsheng Technology Seed Co., Ltd. (Guangxi Zhuang Autonomous Region Higher People’s Court (2017) Gui Min Zhong No. 95 Civil Judgment) [Brief Facts] Bo III You 273 was granted with new variety right of plant, and the owners of the variety rights were Agricultural Science Research Institute of Bobai County in Guangxi Zhuang Autonomous Region (hereinafter referred to as “Bobai Agricultural Science Institute”), Tengjin WANG, Zhenzhuo LIU. Bo III A was also granted with new variety right of plant, and was parents of Bo III You 9678, Bo III You 273, and the variety owner of Bo III A new plant varieties was the Bobai Agricultural Science Institute. On November 2, 2003, the Bobai Agricultural Science Institute and Sichuan Zhongsheng Technology Seed Co., Ltd. (hereinafter referred to as "Zhongsheng") signed an "Agreement on Transfer of Variety Use Rights" (i.e., the 2003 Agreement). The rights to use “Bo II You 815” and “Bo III You 273” were transferred to the Zhongsheng for exclusive use and development. On November 16, 2007, the Zhongsheng and the Bobai Agricultural Science Institute signed an "Agreement" (i.e., the 2007 Agreement), and the Bobai Agricultural Science Institute transferred the rights to use Bo III You 9678 and Bo II You 815 to the Zhongsheng for exclusive use and development (Bo II You 815 was limited in the Guangdong region), the Zhongsheng continued to enjoy rights to use and develop Bo III You 273, and the Bobai Agricultural Science Institute shall not transfer or license variety rights of Bo III You 9678, Bo II You 815 (limited in the Guangdong region) to third parties, otherwise it shall compensate the Zhongsheng for related losses. After the signed agreement came into effect, the 2003 agreement was terminated. On January 7, 2008, the Bobai Agricultural Science Institute authorized the Zhongsheng to produce and manage Bo III You 9678 and Bo III You 273. The Bo III A was only used for matching Bo III You 9678, Bo III You 273, and not allowed to be used for other commercial purposes. Authorization started from January 7, 2008 until December 31, 2012. Sichuan Zhongzheng Science and Technology Ltd. (hereinafter referred to as "Zhongzheng") managed the Bo III You 9678, Bo II You 815, Bo III You 273 and other varieties according to the authorization of the Zhongsheng and the clauses and terms of the 2007 Agreement. On November 2, 2011, the Zhongsheng sent an Email to the Zhongzheng and the Bobai Agricultural Science Institute respectively and decided to terminate the authorization of the Bo III You 9678, Bo III You 273 and Bo II You 815 (withdrawn from the market) produced and managed by the Zhongzheng since November 2nd, 2011, the rights to produce and manage the relevant varieties were exclusively owned by the Zhongsheng. The Zhongsheng enjoyed the rights to develop Bo III You 273, and the Bobai Agricultural Science Institute no longer provided the Zhongzheng with sterile line and restoring line of Bo III You 9678, Bo III You 273, and Bo II You 815. The Bobai Agricultural Science Institute, Tengjin WANG, Zhenzhuo LIU and the Zhongsheng claimed that the acts that the Zhongzheng still entrusted others to produce Bo III You 9678 and Bo III You 273 seeds after November 2, 2011 constituted infringement and thus filed a lawsuit in court. The court of first instance held that the Zhongzheng's acts had infringed on the new plant variety rights involved in the case, so it was determined that the Zhongzheng ceased the acts of infringement, eliminated ill effects, and compensated for economic losses of 1.8 million RMB. The court of second instance held that two new plant varieties, such as Bo III A and Bo III You 273, were announced to be terminated on November 1, 2013 due to failure in payment of annual fee, and the rights were restored on December 4, 2014; on November 1, 2015, the termination was announced again due to failure in payment of the annual fee as required. The first-instance ruling determined that the rights of the two new plant varieties, such as Bo III A and Bo III You 273, were still valid and inconsistent with the facts of the case, and the relevant appeal grounds from the Zhongzheng were justified. The determination of the amount of compensation shall take into account the following factors: acre yields, sales prices recognized by the parties, and the production area recognized by the Zhongzheng; the losses the Zhongzheng inevitably suffered from as a result of sudden suspension of authorization by the Zhongsheng; the duration of the infringement; the amount of the license fee for the new plant variety involved, as well as the type, time, and scope of the implementation permitted, etc. Based on this, the second-instance court decided that the Zhongzheng compensated the Bobai Agricultural Science Institute, Tengjin WANG, Zhenzhuo LIU and Zhongsheng for economic losses of 400,000 RMB. [Typical Significance] This case is a typical case involving the protection of new plant variety rights. Two types of acts that infringe on the rights of new plant varieties can be divided in juridical practice: first, production or sales of reproduction materials of authorized varieties for commercial purposes without permission of the owner of the variety; second, reuse of propagation materials of the authorized varieties for production of another variety of propagation materials for commercial purposes without permission of the owner of the variety. This case also involves determination of the above two types of infringement acts and is typical in the application of law. In addition, the rights of new plant varieties may be intermittently terminated during the protection period, which is a special feature that is not available in other types of intellectual property rights infringement litigation. In this case, the judgment fully considered the special factors in the protection of new plant varieties, correctly identified the acts of infringement and the amount of compensation, and had a rules guiding significance for judgment in similar cases.

9. "Reflective Material" Commercial Secrets Dispute Case

Case of Dispute over Infringement of Commercial Secrets between Hebi Reflective Material Co., Ltd. and Junchao SONG, Hebi Ruimingte Technology Ltd., Jianfa LI (Henan Higher People’s Court (2016) Yu Min Zhong No. 347 Civil Judgment) [Brief Facts] Junchao SONG assumed the role of a salesman in Hebi Reflective Material Co., Ltd. (hereinafter referred to as "Reflective Material") since 2006 and was primarily responsible for sales and customer development in some provinces. The Reflective Material and Junchao SONG successively signed two labor contracts and agreed on Confidentiality clauses and Non-competition clauses. The Reflective Material established a confidentiality system for its business information and took essential confidentiality measures for information on customers and potential customers. At the same time, Junchao SONG and other salesmen were also paid for confidentiality fees. Hebi Ruixin Trading Co., Ltd. (hereinafter referred to as "Ruixin", the predecessor of Hebi Ruimingte Technology Co., Ltd.) was established on June 22, 2011, of which the business scope involves steels, building materials, hardware, coated plates, and reflective barriers. In the period when the Ruixin was in operation, Junchao SONG participated in the related work for the Ruixin in industry and commerce registration procedures in the name of Xiang SONG. The Ruixin's bank balance sheets showed that since the period from August 1, 2011 to July 31, 2015, the Ruixin was coincided with the Reflective Material more than once in terms of trading customers, Junchao SONG made multiple withdraws from the Ruixin's account in his own name. The Reflective Material brought Junchao SONG to a court of law on the grounds that he infringed on commercial secrets. The court of first instance held that Junchao SONG and the Ruixin formed a joint infringement of the commercial secrets of the Reflective Material. The court of second instance held that according to the transaction records provided by the Reflective Material and the customers' bills, the “species”, “specifications” and “quantities” therein can demonstrate the customers' unique needs, and the “closing date” can reflect the law in which the customers purchase commodities, “unit price” can demonstrate the customer's affordability and the bottom line of the transaction price, "remarks" reflects the customers' special information. These contents constitute secret points of business information on the Reflective Material. The customers involved in the above business information have formed stable supply channels with the Reflective Material, maintained a good trading relationship, and the information has practicality in production and management, and can bring economic benefits and competitive advantages to the Reflective Material. The Reflective Material has established a specific confidentiality system for the above business information, and has taken essential confidentiality measures for information on customers and potential customers, and has explicitly agreed with Junchao SONG on Confidentiality clauses and Non-competition clauses, and has paid the corresponding confidentiality fees to Junchao SONG and other salesmen, which can demonstrate that the Reflective Material has taken reasonable confidentiality measures for the above business information. In summary, it can be concluded that the list of customers produced by the Reflective Material constitutes a commercial secret. Junchao SONG should have a duty of loyalty to the Reflective Material, including the obligation to keep confidential the business information exposed to the operation. In the case where he knows the company’s relevant management regulations and the non-public and commercial value of the customer list, he still conducted transactions with the customers of the Reflective Material privately, and had a frequent intercourse with the Ruixin, which constitutes the acts of disclosing, using, and allowing others to use the Reflective Material's business information, and infringes on the commercial secrets of the Reflective Material. The Ruixin improperly acquired and used the commercial secrets owned by the Reflective Material Junchao SONG had. Junchao SONG and Ruixin jointly infringed on the commercial secrets of the Reflective Material. Since the Ruixin has been changed to Ruimingte, thus the liability for infringement shall be borne by the Ruimingte. [Typical Significance] This case is a typical case involving the protection of commercial secrets. It is usually difficult to examine commercial secret cases in view of complex and hidden evidences. In particular, protection of commercial secrets brought about by employee turnover has always been a difficult point in judicial practice. The judgment in this case has made detailed and comprehensive interpretations of important legal issues such as “not known to the public”, “confidentiality measures”, “commercial value” and determination of liability for compensation in the case of commercial secrets, and has a stronger rules guiding significance for trial in similar cases. In addition, the case has also highlighted the confidentiality obligations after employees' departures, and advocated the value orientation of honesty and credit.

10. "Yicha.cn" Infringement of Copyright Case

Crimes of Infringement of Copyright in Beijing Yicha Infinite Information Technology Co., Ltd. and Dong YU (Shanghai Pudong New Area People’s Court (2015) Pu Xing (Zhi) Chu Zi No. 12 Criminal Judgment) [Brief Facts] The defendant, Beijing Yicha Infinite Information Technology Co., Ltd. (hereinafter referred to as "Yicha") is an operator of “Yicha.cn”. Its legal representative and technical director, Dong YU, proposed a solution of developing novel products in a touch screen edition. Yicha.cn transcodes WEB novel pages into WAP pages for mobile users to read. The public security organs detained the server's hard disk of Yicha. The identification officers used this to build the “Yicha.cn” in the LAN environment and discovered that novels could be searched, read, and downloaded. The officers compared 798 novels downloaded from the hard disk with the novels of the same title whose copyrights XUAN TING company had enjoyed, and determined that there were 588 novels in which the same byte accounted for more than 70% based on the total bytes. The defendant and his defender proposed that the development plan of Yicha.cn was to provide searching and transcoding services rather than content services. That is, when the user searches and clicks to read, the source webpage is transcoded and temporarily copied to the hard disk to form a cache and provided for the user to read, and the cache is automatically deleted when the user leaves the read page. However, according to the fact of authentication, it can be known that after the so-called “temporarily copied” contents are transmitted to the user who triggers the “transcoding”, “Yicha.cn” does not immediately delete the corresponding content from the server's hard disk and the content of the “copied” novel can still be used by other users as well, and the above behavior has obviously exceeded the necessary process of transcoding technology. Based on this, it can be concluded that “Yicha.cn” directly provides the Internet users with literary works involved. Without the permission of the copyright owner, Yicha disseminated more than 500 literary works of which copyrights others claim via “Yicha.cn”, where the circumstance is serious, which constitutes a crime of infringement of copyright. Dong YU, as the person directly in charge of Yicha, should be responsible for criminal responsibility for copyright infringement. In this case, Yicha and Dong YU were appropriate leniently punished as he turned himself in and was forgiven by the infringed company through compensation. The court comprehensively considered the circumstances and consequences of the crime in this case, and imposed a fine on the company pursuant to the law and sentenced him for probation and fines. After the verdict, Yicha and Dong YU did not appeal. [Typical Significance] Transcoding technology is a technology produced as mobile reading has become increasingly common. This case is a case where a mobile reading website improperly uses the transcoding technology and thus constitutes a crime of copyright infringement. The judgment demonstrates in detail the characteristics and necessary limits of the implementation of the "transcoding" technology. Starting from the nature of the information network communication, it has clarifies the boundary between crime and non-crime of a "transcoding" behavior. This case shows the criteria of judicial protection of intellectual property rights, under the background of the rapid development of technology, how to combine technical facts to clarify clearly whether the relevant technology exceeds the scope of the law or violates the legal rights of others, while adhering to technology neutrality. For the acts of use of the technology as a shield, serious infringements and compliance with the constitutive elements of intellectual property crimes shall be given criminal punishment according to law. The judgment result in this case fully reflects the judicial wisdom and judicial capacity of the People's Court in dealing with new types of crimes brought about by the advancement of science and technology, and highlights the intensity and determination to crack down on infringements of intellectual property rights according to law.