Case of Litigation Supervision over Administrative Dispute over Trademark Dispute between Guangzhou Monalisa Building Materials Co., Ltd., Guangzhou Monalisa Bath Ware Co., Ltd. and China National Intellectual Property Administration
(Case No.191 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Protection of intellectual property rights, Administrative dispute over trademark dispute, Similar goods, Similar trademarks, Continuous registration, Search for similar cases, Procuratorate's Protest
Key Point
For the identification of similar goods or similar trademarks, the core function of a trademark used to distinguish the source of goods or services should be considered. Emphasis should be placed on examining whether the trademark is likely to cause confusion or misunderstanding to the relevant public. A trademark registrant enjoys independent exclusive trademark rights for each of the registered trademarks, and there is no automatic continuity between trademarks registered at different times. In judicial practices, the conditions for the continuous registration of trademarks shall be strictly implemented. In handling intellectual property cases, the procuratorial organs shall generally conduct searches for similar cases.
Relevant Provisions
Article 28 and 41 of the Trademark Law of the People's Republic of China (Rev. 2001)
Article 91 and 93(1) of the Administrative Procedure Law of the People's Republic of China (Rev. 2017)
Article 94 of the Rules for Supervision over Administrative Proceedings by the People's Procuratorate (Effective since 2021)
Zhou Xx v. Xiang Xx and Li Xx (case of supervision over serial fictitious actions involving copyright ownership and infringement dispute)
(Case No.192 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Protection of intellectual property rights, Copyright dispute, Copyright registration, Fictitious action, Digital procuratorial work, Comprehensive performance of duties
Key Point
A person may constitute the crime of fictitious action, where he fraudulently obtains copyright registration for others' works by impersonating the author, uses it as the main evidence of a lawsuit for the purpose of making illegitimate profits, causes harm to the legitimate rights and interests of others, and disturbs the judicial order. The procuratorial organs shall actively promote digital procuratorial work, leverage big data to empower innovative legal supervision models, and overcome bottlenecks in the supervision over fictitious action. In cases of fictitious actions in the field of intellectual property rights, the procuratorial organs shall initiate supervision proceedings within their authority, and promote comprehensive governance through supervising effective civil judgments, transferring clues related to criminal cases, providing social governance opinions and recommendations, and other ways.
Relevant Provisions
Article 266 and Paragraph 1 of Article 307 of the Criminal Law of the People's Republic of China (Rev. 1997)
Article 215(2) of the Civil Procedural Law of the People's Republic of China (Effective since 2021)
Article 11 of the Copyright Law of the People's Republic of China (Rev.2010)
People v. 15 Persons including Liang Yongping and Wang Zhenghang (case of copyright infringement)
(Case No.193 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Protection of intellectual property rights, Crime of copyright infringement, Dissemination through information network, Application of the safe harbor rule, Substantive similarity, Multi-level and classified disposal
Key Point
In handling criminal cases of online copyright infringement, the people’s procuratorates shall accurately understand the conditions for applying the “safe harbor rule” and determine whether the defense of innocence is valid by examining whether the network service provider was aware of the infringement. In cases involving a large number of infringing audio-visual works, sampling identification by appraisal institutions, combined with the opinions of the right holders, can be used to comprehensively determine whether the works constitute substantive similarity. For online intellectual property rights cases with numerous individuals involved, a multi-level and classified approach shall be adopted according to the criminal policy of tempering justice with mercy, based on their status, roles, degree of involvement, subjective maliciousness, and other factors.
Relevant Provisions
Article 217 of the Criminal Law of the People's Republic of China (Rev. 1997)
Article 1195 and 1197 of the Civil Code of the People's Republic of China (Effective since 2021)
Article 5(2) (i) and 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate of Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Involving Infringements upon Intellectual Property Rights (Effective since 2004)
Article 1 of the Interpretation (II) of the Supreme People's Court and the Supreme People's Procuratorate of Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Involving Infringements upon Intellectual Property Rights (Effective since 2007)
Article 2 and 10 of the Interpretation (III) of the Supreme People's Court and the Supreme People's Procuratorate of Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Involving Infringements upon Intellectual Property Rights (Effective since 2020)
Article 3 of the Opinions on Several Issues concerning the Application of Law in Handling Intellectual Property Right Infringement Criminal Cases (Effective since 2011)
