As may be known to many IP practitioners, there are three types of patents in China: invention patent, utility model patent and design patent. For protection of intellectual property related to a product, there are different varieties and combinations available in China. We will discuss filing strategy for direct filing in China in this article (not for PCT national stage filing).
A few weeks ago, Quanzhou * Trading Company attempted to ship several thousand shoes through Xiamen Port declaring the goods as “leisure shoes” before Xiamen Customs. In the Xiamen Port, during the routine inspection of the goods by Xiamen Customs Officers, it is discovered that there are several different kinds of packaging shoe boxes, some of which bore the printed mark “ATR Max”, confusingly similar to Nike’s trademark “AIR Max” as registered in the China Customs IP Registration System.
In China, novelty of the patent can be affected by "a conflicting application" of patent which is filed before the application date of the patent and published after the application date of the patent. There is no further indication on whether different types of patent can be conflicting applications in the Patent Law, the Implementation Rule or in the Examination Guideline. Can a design patent be a conflicting application of a utility model patent or a invention patent?
In November 2014, Louis Vuitton Malletier, S.A. discovered that large number of handbags and backpacks with trademark and design similar to the registered trademarks and design of Louis Vuitton sold in Xinjinpu Fashion City located in Qipu Road of Shanghai.
On 25 July, upon the petition from Adobe, Inc. and Autodesk, Inc., Beijing IP Court finished the evidence preservation in a litigation brought by the aforesaid companies against Beijing Ourpalm Co., Ltd. for software copyright infringement.
Last week, Beijing IP Court received 6 complaints from Samsung Electronics Co., Ltd. against Beijing Hengda Mall and Huawei Technology Co., Ltd. for patent infringement. Samsung is requesting a damage of CNY 160 Million (USD 24 Million).
Last week, Nokia Solutions and Networks announced that it has filed 4 lawsuit against Huawei Technology Co. and Huawei Terminal Company for patent infringement of 3 patents of Nokia before Eastern District of Texas . Back in July 5, Huawei started a patent lawsuit against T-Mobile, who is one of major client of Nokia.
The judgment of the Second Instance was issued recently after the lost of the First Instance issued in last April for New Balance Trading (China) Co., Ltd., an affiliate of U.S. sneaker maker New Balance (hereinafter referred to as New Balance China). The Guangdong Higher People's Court affirmed the first instance judgment that New Balance China shall stop infringement actions against the trademarks owned by a Chinese citizen surnamed ZHOU, and shall publish a declaration on its official website as well as its online shopping mall to eliminate negative effects; however, the amount of damages was reduced from CNY 98 millions (USD 14.7 millions) to CNY 5 millions (USD 740 thousands).
Guangzhou IP Court was established on December 16 as one of the three IP Courts in China. From Dec 21, 2014 to Dec 31, 2015, Guangzhou IP Court has accepted 4,940 IP cases and closed 3,393 cases, with a total rate of case closed up to 68.68%. In Guangzhou IP Court, there are now altogether 13 presiding judges, each of which closed 261 cases on average every year. The number is 2.36 times of the average number of judges in Guangdong Province.
