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Recently, the Supreme People’s Court and Supreme People’s Procuratorate jointly promulgated the Opinions on Certain Issues Concerning Application of Laws in Handling Criminal Cases of Commercial Bribery (the “Opinions”).
The Opinions clarified certain aspects of application of law in criminal cases of commercial bribery, i.e., (i) scope of commercial bribery; (ii) scope of subject of this crime; (iii) criminal liability for commercial bribery in specific sectors, such as pharmaceutical procurement and sales, construction, government procurement; (iv) delineation of illegitimate interest in commercial bribery; (v) legal basis for determining accomplice in commercial bribery.
Particularly, the Opinions addressed the issue of how to distinguish gifts between friends (which are common in a “relationship” society of China) and commercial bribery. Four factors should be taken into account: (i) historical relationship between the parties; (ii) amount of gifts; (iii) cause, timing and means of offering the gifts, especially whether to request the recipient to do something by taking advantage of his/her position; and (iv) whether the recipient takes advantage of his/her position to do that favor.
Given the complexity of commercial bribery in business practice, the Opinions also expanded the crime into offering not only property but also other proprietary interests or benefits.
Showing posts with label Litigation. Show all posts
Showing posts with label Litigation. Show all posts
Wednesday, December 3, 2008
Tuesday, November 18, 2008
Beijing: Draft Judicial Interpretations on Well-Known Trademarks in China
Owners of Chinese well-known trademarks are entitled to broader protection than ordinary trademarks registered in China. Above said, whether a trademark constitutes a well-known one in China becomes a significant issue to its owner.
The Supreme People’s Court of China promulgated draft Interpretations Concerning Certain Issues on Application of Laws in Recognizing and Protecting Well-Known Trademarks in Trails of Civil Disputes Related to Trademark Infringement (“Draft Interpretations”) on November 11, 2008.
The Draft Interpretations aim at addressing those common issues that have been revealed in judicial practice of recognizing Chinese well-known trademarks, and further strengthening protection over such trademarks in China.
Under the Draft Interpretations, only if the issue whether a disputed trademark constitutes Chinese well-known trademark is legally or factually significant in determining trademark infringement or unfair competition, such issue will be analyzed and determined by relevant people’s court.
It is noted that in order to be recognized as Chinese well-known trademark, the relevant trademark must be widely known within the territory of China. In other words, mere evidence of being well-known outside China (such as an international brand) is not sufficient to establish existence of a Chinese well-known trademark, even though overseas reputation or recognition may be taken into account in certain circumstances.
With respect to jurisdiction over cases involving judicial recognition of Chinese well-known trademarks, the views are split, and the Draft Interpretations provide for two possible options. One holds that intermediate people’s courts or above shall have such jurisdiction, while the other deem it necessary to further narrow it down to intermediate people’s court or above in major cities or others at the same level as approved by the Supreme People’s Court.
The Supreme People’s Court of China promulgated draft Interpretations Concerning Certain Issues on Application of Laws in Recognizing and Protecting Well-Known Trademarks in Trails of Civil Disputes Related to Trademark Infringement (“Draft Interpretations”) on November 11, 2008.
The Draft Interpretations aim at addressing those common issues that have been revealed in judicial practice of recognizing Chinese well-known trademarks, and further strengthening protection over such trademarks in China.
Under the Draft Interpretations, only if the issue whether a disputed trademark constitutes Chinese well-known trademark is legally or factually significant in determining trademark infringement or unfair competition, such issue will be analyzed and determined by relevant people’s court.
It is noted that in order to be recognized as Chinese well-known trademark, the relevant trademark must be widely known within the territory of China. In other words, mere evidence of being well-known outside China (such as an international brand) is not sufficient to establish existence of a Chinese well-known trademark, even though overseas reputation or recognition may be taken into account in certain circumstances.
With respect to jurisdiction over cases involving judicial recognition of Chinese well-known trademarks, the views are split, and the Draft Interpretations provide for two possible options. One holds that intermediate people’s courts or above shall have such jurisdiction, while the other deem it necessary to further narrow it down to intermediate people’s court or above in major cities or others at the same level as approved by the Supreme People’s Court.
Thursday, November 13, 2008
Beijing: Supreme People’s Court to Try A Copyright Case Live
On November 14, 2008, the Supreme People’s of China will try a copyright infringement case, which is to be live broadcasted online via China Court Net (www.chinacourt.org).
The trial was brought up by a famous singer in China, Sun Nan. In 2006, agent of Sun Nan purchased a CD of songs performed by Sun Nan. Based on this, Sun Nan filed a lawsuit against the CD publishers on the cause of unauthorized copying and publishing of such songs, which infringed his right to perform. He claimed the damage of RMB300,000 and requested the court to order the defendants to cease sales of, and destroy such infringing products.
The trial court supported all of Sun Nan’s claims, which was appealed by the defendants. The appellant court reversed the trial court’s judgment, and held in favor of the defendants.
Unsatisfied with the judgment of appellant court, Sun Nan applied for re-trial of this case by the Supreme People’s Court of China. It will be the first time for the Supreme People’s Court to try a case with live broadcasting online.
The trial was brought up by a famous singer in China, Sun Nan. In 2006, agent of Sun Nan purchased a CD of songs performed by Sun Nan. Based on this, Sun Nan filed a lawsuit against the CD publishers on the cause of unauthorized copying and publishing of such songs, which infringed his right to perform. He claimed the damage of RMB300,000 and requested the court to order the defendants to cease sales of, and destroy such infringing products.
The trial court supported all of Sun Nan’s claims, which was appealed by the defendants. The appellant court reversed the trial court’s judgment, and held in favor of the defendants.
Unsatisfied with the judgment of appellant court, Sun Nan applied for re-trial of this case by the Supreme People’s Court of China. It will be the first time for the Supreme People’s Court to try a case with live broadcasting online.
Wednesday, November 5, 2008
Beijing: First Lawsuit on Supermarket’s Use of Background Music
Music Copyright Society of China (“MCSC”) sued a supermarket in Beijing based on alleged infringing use of background music, and claimed damage of RMB16,500.
On November 4, 2008, Beijing Haidian People’s Court began to try this first copyright infringement lawsuit arising from supermarket’s use of background music since the promulgation of PRC Copyright Law.
MCSC is a collective management organization of music copyright in China, which aims at protecting music copyright holders, and representing them in infringement cases.
According to MCSC, the defendant, absent the right holder’s authorization, used a song as background music of the supermarket, which constituted copyright infringement.
MCSC indicated that around 8,000 companies in China have voluntarily paid royalties to MCSC for their use of background music in their respective stores; however, this only represents a minority of supermarkets or stores in China. Therefore, MCSC, via this lawsuit, intends to alert those companies to the potential infringing use of background music and its resulting violation of Chinese law, and in the meantime, encourage right holders to claim their rights in such cases through MCSC.
The defendant argued that use of background music in the supermarket is not for profit-making purpose, which is different from use of music in KTVs or other similar places. Thus, different rates of royalties should be applied to different types of use of music.
Though this case is still under trial, it is clear that all sorts of brand new intellectual property disputes are getting more common in China.
On November 4, 2008, Beijing Haidian People’s Court began to try this first copyright infringement lawsuit arising from supermarket’s use of background music since the promulgation of PRC Copyright Law.
MCSC is a collective management organization of music copyright in China, which aims at protecting music copyright holders, and representing them in infringement cases.
According to MCSC, the defendant, absent the right holder’s authorization, used a song as background music of the supermarket, which constituted copyright infringement.
MCSC indicated that around 8,000 companies in China have voluntarily paid royalties to MCSC for their use of background music in their respective stores; however, this only represents a minority of supermarkets or stores in China. Therefore, MCSC, via this lawsuit, intends to alert those companies to the potential infringing use of background music and its resulting violation of Chinese law, and in the meantime, encourage right holders to claim their rights in such cases through MCSC.
The defendant argued that use of background music in the supermarket is not for profit-making purpose, which is different from use of music in KTVs or other similar places. Thus, different rates of royalties should be applied to different types of use of music.
Though this case is still under trial, it is clear that all sorts of brand new intellectual property disputes are getting more common in China.
Tuesday, November 4, 2008
Beijing: Supreme People’s Court Commented on Implementation Issues of Anti-Monopoly Law
The long-awaited PRC Anti-monopoly Law (“AML”) has left quite a number of implementation questions unanswered; and recently, the head of Administrative Tribunal of the Supreme People’s Court of China responded to some of those questions with respect to administrative lawsuits that may be brought under AML.
Who has the jurisdiction?
Pursuant to the AML and the PRC Administrative Litigation Law, people’s courts that have jurisdiction over AML-related administrative lawsuits are relevant intermediate or higher people’s courts located where defendants reside.
Who can be defendants?
AML set up two-level institution. One is a Anti-monopoly Commission under the State Council, which is to coordinate anti-monopoly related work at a national level, and research for, make, and publish anti-monopoly related policies and regulations. The other is institutions which are responsible for enforcement of AML, i.e., the Ministry of Commerce (“MOFCOM”), the National Development and Reform Commission (“NDRC”), and the State Administration for Industry and Commerce (“SAIC”), and their respective counterparts at provincial level.
Given that the second-level institutions are those who will enforce AML in daily practice, and take specific administrative acts, they are potential defendants in AML-related administrative lawsuits.
What acts can be sued?
Under the PRC Administrative Litigation Law, only specific administrative acts (as opposed to administrative rules for general application). Therefore, specific administrative acts related to AML (including, without limitation, administrative licensing, penalties, decisions, approvals, and enforcement) can be cause of actions for AML-related administrative lawsuits.
Who bears the burden of proof?
As a general rule under the PRC Administrative Litigation Law, defendants bear the burden to prove that their specific administrative acts are in compliance with applicable laws, and facts that are not recorded at the time of conducting administrative acts should be excluded as inadmissible. If defendants do not produce evidence or delay in producing evidence without justification, it is deemed that disputed administrative acts lack corresponding evidences.
Who has the jurisdiction?
Pursuant to the AML and the PRC Administrative Litigation Law, people’s courts that have jurisdiction over AML-related administrative lawsuits are relevant intermediate or higher people’s courts located where defendants reside.
Who can be defendants?
AML set up two-level institution. One is a Anti-monopoly Commission under the State Council, which is to coordinate anti-monopoly related work at a national level, and research for, make, and publish anti-monopoly related policies and regulations. The other is institutions which are responsible for enforcement of AML, i.e., the Ministry of Commerce (“MOFCOM”), the National Development and Reform Commission (“NDRC”), and the State Administration for Industry and Commerce (“SAIC”), and their respective counterparts at provincial level.
Given that the second-level institutions are those who will enforce AML in daily practice, and take specific administrative acts, they are potential defendants in AML-related administrative lawsuits.
What acts can be sued?
Under the PRC Administrative Litigation Law, only specific administrative acts (as opposed to administrative rules for general application). Therefore, specific administrative acts related to AML (including, without limitation, administrative licensing, penalties, decisions, approvals, and enforcement) can be cause of actions for AML-related administrative lawsuits.
Who bears the burden of proof?
As a general rule under the PRC Administrative Litigation Law, defendants bear the burden to prove that their specific administrative acts are in compliance with applicable laws, and facts that are not recorded at the time of conducting administrative acts should be excluded as inadmissible. If defendants do not produce evidence or delay in producing evidence without justification, it is deemed that disputed administrative acts lack corresponding evidences.
Monday, November 3, 2008
Beijing: Digital Copyright of Thesis Infringed?
482 master and Ph.D. degree holders (collectively, the “Plaintiffs”) sued Beijing Wanfang Data Co., Ltd. (“Wanfang Data” or the “Defendant”) with respect to the Defendant’s infringing use of the Plaintiffs’ thesis. The trial judgment held the Defendant lost to 364 of the Plaintiffs, and should cease collecting thesis, make public apologies on its website, and compensate those winning Plaintiffs for the damages and reasonable litigation expenses.
According to the Plaintiffs’ claim, Wanfang Data, without due authorization, collected the Plaintiffs’ thesis, scanned them into digital files, and included the same into a “China Thesis Database”, which was available for search by various libraries across the nation after their paying certain subscription fees to use Wanfang Data’s system.
The Plaintiffs claimed that Wanfang Data’s conduct was illegally publishing, copying, disseminating, and selling the Plaintiffs’ thesis for profit, which constituted copyright infringement.
During the trial, Wanfang Data counter-argued that China Science and Technologies Information Research Institute (“CSTIRI”) is the designated institute to collect thesis under Chinese law, and the Defendant was authorized by CSTIRI to develop a database of such thesis. The Defendant further argued, given that the database was only available to users of college and other nation-wide libraries (as opposed to the general public), the purpose of this database was to promote exchange of research results, instead of for-profit-sale. In addition, the Defendant also pointed out that 324 of the Plaintiffs have signed certain agreements with their respective graduating universities, authorizing those universities to dispose their thesis, and those universities have all entered into agreements with CSTIRI, authorizing CSTIRI to include those thesis into the database.
According to the trial court, Wanfang Data infringed copyright to thesis of 158 of the Plaintiffs who have not entered into any agreements with their graduating universities with respect to the disposal of their thesis. Among the remaining 324 Plaintiffs, the agreements 206 of them have entered with their graduating universities were insufficient to justify Wanfang Data’s use of the disputed thesis, thereby rendering the Defendant’s conduct as copyright infringement too.
Thus, 364 of the Plaintiffs were entitled to damages in the range from RMB2,300 to RMB5,100 individually, which added up to over-RMB1 million-damage in total to be paid by Wanfang Data. With respect to the remaining 118 of the Plaintiffs, due to their agreements with graduating universities, plus the latter’s agreements with CSTIRI, the trial court determined that Wanfang Data’s conduct did not infringe their respective copyright.
Upon announcement of the trial judgment on October 16, 2008, the attorney representing the Plaintiffs indicated that the Plaintiffs would further continue this case with an appeal.
According to the Plaintiffs’ claim, Wanfang Data, without due authorization, collected the Plaintiffs’ thesis, scanned them into digital files, and included the same into a “China Thesis Database”, which was available for search by various libraries across the nation after their paying certain subscription fees to use Wanfang Data’s system.
The Plaintiffs claimed that Wanfang Data’s conduct was illegally publishing, copying, disseminating, and selling the Plaintiffs’ thesis for profit, which constituted copyright infringement.
During the trial, Wanfang Data counter-argued that China Science and Technologies Information Research Institute (“CSTIRI”) is the designated institute to collect thesis under Chinese law, and the Defendant was authorized by CSTIRI to develop a database of such thesis. The Defendant further argued, given that the database was only available to users of college and other nation-wide libraries (as opposed to the general public), the purpose of this database was to promote exchange of research results, instead of for-profit-sale. In addition, the Defendant also pointed out that 324 of the Plaintiffs have signed certain agreements with their respective graduating universities, authorizing those universities to dispose their thesis, and those universities have all entered into agreements with CSTIRI, authorizing CSTIRI to include those thesis into the database.
According to the trial court, Wanfang Data infringed copyright to thesis of 158 of the Plaintiffs who have not entered into any agreements with their graduating universities with respect to the disposal of their thesis. Among the remaining 324 Plaintiffs, the agreements 206 of them have entered with their graduating universities were insufficient to justify Wanfang Data’s use of the disputed thesis, thereby rendering the Defendant’s conduct as copyright infringement too.
Thus, 364 of the Plaintiffs were entitled to damages in the range from RMB2,300 to RMB5,100 individually, which added up to over-RMB1 million-damage in total to be paid by Wanfang Data. With respect to the remaining 118 of the Plaintiffs, due to their agreements with graduating universities, plus the latter’s agreements with CSTIRI, the trial court determined that Wanfang Data’s conduct did not infringe their respective copyright.
Upon announcement of the trial judgment on October 16, 2008, the attorney representing the Plaintiffs indicated that the Plaintiffs would further continue this case with an appeal.
Thursday, October 30, 2008
Beijing: First Antimonopoly Case in China
In stark contrast with the common perception that Chinese “hate” and “avoid” litigation, plaintiffs in China are much more fast-paced nowadays.
On the date when China’s first comprehensive competition statute, PRC Antimonopoly Law, took effect, a plaintiff, Mr. Fangping Li (who is a lawyer), brought China Netcom, a mega State-owned telecom company, into the courtroom.
Mr. Li claimed that China Netcom has “abused its dominant market position by applying differential treatments to counter-parties to transactions who have the same qualifications with respect to transaction price and other transaction terms, without any justification” (Article 17(6) of PRC Antimonopoly Law).
According to Mr. Li, he, as a non-Beijing permanent resident, had no choice but to opt for the pre-paid services of China Netcom when installing his land line telephone in Beijing. Unexpectedly, the difference following that choice is much more than when to pay the fees (pre-paid vs. monthly billing after actual use). In his claim, Mr. Li enlisted 8 items of preferential treatment or services that Netcom provided to monthly billing customers only. This seems unfair to Mr. Li, who decided to arm himself with the weapon provided under the new law (Article 50 of PRC Antimonopoly Law entitles those who suffer losses by one’s monopolistic conduct to file civil lawsuits) even though he only claimed nominal damage of RMB 1.
On September 18, 2008, the Beijing Chaoyang People’s Court accepted this case, and it had this latest development on October 29. After the judge clarified with the plaintiff that this was an antitrust claim, the case was transferred to Beijing No. 2 Intermediate People’s Court, which has the jurisdiction over antimonopoly cases pursuant to a recently-issued judicial interpretation.
This is the first antimonopoly case in China. Though formally accepted and transferred to proper jurisdiction, the case has much to be seen with respect to where it goes and how the long-awaited new law will be enforced.
On the date when China’s first comprehensive competition statute, PRC Antimonopoly Law, took effect, a plaintiff, Mr. Fangping Li (who is a lawyer), brought China Netcom, a mega State-owned telecom company, into the courtroom.
Mr. Li claimed that China Netcom has “abused its dominant market position by applying differential treatments to counter-parties to transactions who have the same qualifications with respect to transaction price and other transaction terms, without any justification” (Article 17(6) of PRC Antimonopoly Law).
According to Mr. Li, he, as a non-Beijing permanent resident, had no choice but to opt for the pre-paid services of China Netcom when installing his land line telephone in Beijing. Unexpectedly, the difference following that choice is much more than when to pay the fees (pre-paid vs. monthly billing after actual use). In his claim, Mr. Li enlisted 8 items of preferential treatment or services that Netcom provided to monthly billing customers only. This seems unfair to Mr. Li, who decided to arm himself with the weapon provided under the new law (Article 50 of PRC Antimonopoly Law entitles those who suffer losses by one’s monopolistic conduct to file civil lawsuits) even though he only claimed nominal damage of RMB 1.
On September 18, 2008, the Beijing Chaoyang People’s Court accepted this case, and it had this latest development on October 29. After the judge clarified with the plaintiff that this was an antitrust claim, the case was transferred to Beijing No. 2 Intermediate People’s Court, which has the jurisdiction over antimonopoly cases pursuant to a recently-issued judicial interpretation.
This is the first antimonopoly case in China. Though formally accepted and transferred to proper jurisdiction, the case has much to be seen with respect to where it goes and how the long-awaited new law will be enforced.
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