1、 Intellectual Property Civil Cases

1. The commercial defamation dispute case of the "360 Detaining Bodyguard" software

The appeal case of Unfair competition dispute between Tencent Technology (Shenzhen) Co., Ltd., Shenzhen Tencent Computer System Co., Ltd. and Beijing Qihoo Technology Co., Ltd., Qizhi Software (Beijing) Co., Ltd. [the Supreme People's Court (2013) Min San Zhong Zi No. 5 Civil Judgment]

【 Summary of Case 】 Beijing Qihu Technology Co., Ltd. and Qizhi Software (Beijing) Co., Ltd. (collectively referred to as Qihu Company) have developed the "360 Detention Bodyguard" software specifically for QQ software of Tencent Technology (Shenzhen) Co., Ltd. and Shenzhen Tencent Computer System Co., Ltd. (collectively referred to as Tencent Company). They have promoted the Detention Bodyguard software on relevant websites to comprehensively protect the safety of QQ software users and provided downloads. After installing the buckle bodyguard software, the software will automatically perform a physical examination of the QQ software, warning users of serious health problems in red font, providing one click repair help in green font, and listing "the computer is in danger if 360 security guards are not installed; upgrading the QQ security center; preventing QQ from scanning my files" as a dangerous item; When killing QQ Trojans, it displays "If you do not install 360 Security Guard, you will not be able to use the Trojan killing function", and provides installation and download services for 360 Security Guard with green function keys; After a one click repair, the security communication interface of the QQ software was replaced with the security communication interface of the security guard. Tencent and others filed a lawsuit on the grounds that the above acts constituted Unfair competition. The High people's court of Guangdong Province held in the first instance that Qihoo and other aforementioned acts constituted Unfair competition; It deliberately fabricated and spread false facts against Tencent's operations, which damaged the company's commercial reputation and product reputation, and constituted commercial defamation. Thus, Qihu Company and others were sentenced to publicly apologize, eliminate the impact, and jointly compensate for economic losses and reasonable rights protection costs totaling 5 million yuan. Qihu Company and others are dissatisfied and file an appeal. The Supreme People's Court held in the second instance that in market competition, operators can usually freely choose their business models based on market needs and consumer demands, which is an inevitable requirement of the market economy. The business model of combining the free platform used by Tencent and other companies with advertising or value-added services was the usual mode of operation in the internet industry at the time of the dispute in this case, and it also conforms to the phased characteristics of the development of China's internet market. This business model does not violate the spirit of the principles and prohibitions of the Anti Unfair competition Law. Tencent and other companies seeking commercial interests in this way should be protected, and others should not damage their legitimate rights and interests by unfair interference. The aforementioned actions of Qihu Company undermine the security and integrity of QQ software and its services, interfere with its legitimate business activities, and harm its legitimate rights and interests. The fundamental purpose of the aforementioned actions of Qihu Company and others is to rely on the strong user base of QQ software, promote and promote 360 Security Guard through derogatory means of QQ software and its services, thereby increasing market trading opportunities and gaining market competitive advantages for Qihu Company and others. This behavior essentially belongs to the behavior of illegally utilizing other people's market achievements, seeking business opportunities for oneself, and obtaining competitive advantages, It violates the principles of good faith and fair competition and constitutes Unfair competition. The Supreme People's Court rejected the appeal and upheld the original judgment.

In this case, the Supreme People's Court clarified the rules for determining commercial defamation behavior in the internet market. The fundamental requirement is whether the actions of relevant operators have caused damage to the commercial reputation or product reputation of competitors in a misleading manner. The Supreme People's Court pointed out that when operators make commercial comments or criticisms towards others for competitive purposes, they should especially fulfill their duty of caution and attention; The healthy development of the Internet requires an orderly market environment and clear market competition rules as guarantees, and freedom of competition and innovation must be bounded by not infringing on the legitimate rights and interests of others. In this case, the Supreme People's Court has clarified the relationship between technological innovation, free competition and Unfair competition in the Internet market. This case is a milestone for related Internet enterprises to carry out orderly competition and promote the optimal allocation of market resources.

2. Cases of Monopoly Disputes over the Abuse of Market Dominance in the Internet Field

Beijing Qihu Technology Co., Ltd., Tencent Technology (Shenzhen) Co., Ltd., and Shenzhen Tencent Computer System Co., Ltd. Abuse of Market Dominant Position Dispute Appeal Case [Supreme People's Court (2013) Min San Zhong Zi No. 4 Civil Judgment]

[Abstract] Beijing Qihoo Technology Co., Ltd. sued to the High people's court of Guangdong Province, claiming that Tencent Technology (Shenzhen) Co., Ltd. and Shenzhen Tencent Computer System Co., Ltd. (collectively referred to as Tencent, etc.) have market supporting positions in Relevant market of instant messaging software and services, and accused Tencent of abusing this dominant position and restricting transactions and Product bundling without justified reasons. Requesting a decree to immediately stop Tencent's monopolistic behavior of abusing its dominant market position, and jointly compensating Qihu Company for economic losses of 150 million yuan. The High people's court of Guangdong Province held in the first instance that the relevant commodity market in this case far exceeds the comprehensive instant messaging service market, and the relevant regional market should be the global market. Tencent does not have a dominant position in the Relevant market. Due to Qihu Company's incorrect definition of the relevant commodity market in this case, the evidence provided by Qihu Company is insufficient to prove that Tencent and others have a monopoly position in the relevant commodity market. Therefore, Qihu Company's lawsuit lacks factual and legal basis and cannot be established. The court ruled to dismiss all the litigation claims of Qihu Company. Qihu Company is dissatisfied and has filed an appeal. The Supreme People's Court redefined the scope of the Relevant market of the case by using economic analysis methods, and through investigating the actual or possible competitive effects of the sued monopoly behavior, it believed that based on the existing evidence of the case, it was not enough to determine that Tencent and other companies had implemented restricted transactions and tying arrangements prohibited by the anti-monopoly law. Therefore, the judgment rejected the appeal and upheld the original judgment.

Typical significance: This case is the first monopoly case tried by the Supreme People's Court. In the 74000 word judgment, the Supreme People's Court elaborated on a series of legal issues of great significance, such as the criteria for defining Relevant market, the criteria for determining market dominance, and the principles and methods for analyzing acts of abusing market dominance in the sense of anti-monopoly law in the Internet field, and clarified several important judgment standards for the application of anti-monopoly law. In terms of the analysis of abusive behavior, the judgment in this case creatively adopts the analytical paradigm of "behavior competition effect evaluation" internationally; In terms of the definition of Relevant market in the Internet field, the judgment not only uses the internationally accepted economic analysis methods, but also comprehensively uses the knowledge of sociology, psychology and other disciplines as support, and deeply expounds the role and value of the definition of Relevant market, clarifying that the definition of Relevant market is not a necessary step; In terms of the determination of the market dominance of operators in the Internet field, especially the influence of the Two-sided market, the judgment deeply elaborates the influence of the Two-sided market on the market dominance of operators, and puts forward the idea that the starting point of Two-sided market analysis should be determined according to the specific case, and there is no need or fixed analysis paradigm. The verdict in this case has had a wide impact both domestically and internationally. The industry and academia highly praised the judgment, believing that it demonstrated that the Supreme People's Court has established a model and benchmark in clarifying legal standards and guiding the development of the internet industry. Some comments point out that the judgment of the Supreme People's Court is "a judgment that truly understands the Internet"; The legal application standards elaborated by the highest judicial authority in China in its judgments have set a benchmark for worldwide internet antitrust judgments and will have a significant impact internationally.

3. Dispute over the "Baoqing" Trademark Franchise Contract

The appeal case of franchise contract dispute between Nanjing Baoqing Silver House Chain Development Co., Ltd., Jiangsu Chuangyu Industry and Trade Co., Ltd., Nanjing Baoqing Silver House Jewelry Co., Ltd., and Nanjing Baoqing Jewelry Head Office [Jiangsu High People's Court (2012) Su Zhimin Zhong Zi No. 0154 Civil Judgment]

Summary of Case: Nanjing Baoqing Yinlou Jewelry Co., Ltd. (referred to as Baoqing Jewelry Company) and Nanjing Baoqing Jewelry General Company (referred to as Baoqing General Company) are the rights holders of the "Baoqing" series of registered trademarks. Nanjing Baoqing Yinlou Chain Development Co., Ltd. (referred to as Chain Company) and Jiangsu Chuangyu Industry and Trade Co., Ltd. (referred to as Chuangyu Company) have signed a series of cooperation agreements with Baoqing Jewelry Company and Baoqing Head Office since 2005, to cooperate through franchise. During the cooperation period between the two parties, the "Baoqing" brand achieved tremendous development, with annual sales reaching billions of yuan. However, due to the failure of the joint venture negotiation, the cooperation relationship ultimately broke down. Baoqing Head Office and Baoqing Jewelry Company have sent a letter requesting the termination of the cooperation agreement between the two parties on the grounds that the chain company has engaged in multiple breach behaviors and constitutes a fundamental breach of contract. At the same time, they have filed a series of trademark infringement lawsuits in multiple courts in Jiangsu. Chain companies and Chuangyu Company also filed a lawsuit in court, requesting confirmation that the notice of termination of the agreement was invalid. The Intermediate people's court of Nanjing City, Jiangsu Province, made a first instance judgment on the case of franchise contract dispute between the two parties, confirmed that the agreement for rescission of the case proposed by Baoqing Jewelry Company and Baoqing Head Office was invalid, and rejected other litigation claims of the chain company. Both parties are dissatisfied and file an appeal. The Jiangsu High People's Court, on the basis of fully weighing the reasons for the disputes between the two parties, the nature and extent of various violations of the chain companies, the number of unauthorized stores opened by the chain companies in violation of the contract, and the contributions of both parties to the Baoqing brand, reasonably balanced the interests of both parties, and clearly defined the nature of the cooperation relationship between the two parties and the Baoqing head office On the basis of correcting the reasonable scope of use of the Baoqing trademark by the chain company as determined in the reasons for the first instance judgment, the legal boundaries of the rights of Baoqing Jewelry Company and the legitimate business operations of the chain company have been upheld, and the first instance judgment has confirmed the invalidity of the termination agreement. According to the arbitration rules established in the franchise contract dispute case, any unauthorized use of the Baoqing trademark by chain companies for store operation constitutes trademark infringement, and the infringement is ordered to cease and compensation for losses is made; Any chain company that has already been licensed can continue to operate, and the second instance court will make corresponding final judgments on a series of trademark infringement disputes between the two parties.

[Typical Significance] For such cooperation disputes based on franchising between both parties, especially cases where the cooperation has been long-standing, brand reputation and market have achieved significant growth, and the judgment results involve significant interests of both parties, the court did not adopt a simple judgment method. Instead, it fully utilized judicial wisdom, guided by the balance of interests, and explored a more rational dispute resolution approach, that is, in cases where the judgment does not terminate the contract While requiring both parties to continue their cooperation, the boundaries of their rights and obligations should be further clarified through judgments: on the one hand, to ensure the franchisor's absolute control over the franchising resources, especially the intellectual property rights such as trademarks, and to clarify that the franchisor should operate in good faith according to the agreement and not break through the scope of the franchisor's rights, attempting to seize the franchisor's intellectual property interests; On the other hand, it is required that for the franchisee to operate in good faith according to the contract, the franchisor should also continue to allow and approve normally according to the contract agreement. Without justifiable reasons, the license cannot be refused, and the legitimate rights and interests of the franchisee must be harmed. According to the above judgment rules established in the franchise contract dispute judgment, a series of trademark infringement disputes between the two parties have also been properly handled. The verdict of the case did not cause significant market fluctuations for the "Baoqing" brand, nor did it cause a significant imbalance in the market interests of both parties. Neither party has applied for a retrial of the final judgment.

4. Disputes over Unfair competition of the domain name registered earlier by "quna. com"

The appeal case of Unfair competition dispute between Beijing Qunar Information Technology Co., Ltd. and Guangzhou Qunar Information Technology Co., Ltd. [Guangdong High people's court (2013) YGFMSZZ No. 565 Civil Judgment]

On May 9, 2005, Zhuang Chenchao registered the "qunar.com" domain name and created the "Qunar.com" website. After the establishment of Beijing Quna Information Technology Co., Ltd. (referred to as Quna Company) on March 17, 2006, the domain name "qunar.com" was transferred by Zhuang Chenchao to the company. After years of use, "Qunar", "Qunar", "qunar.com" and other service logos have become the unique names of well-known services. The predecessor of Guangzhou Qunar Information Technology Co., Ltd. (referred to as Qunar Company) was established on December 10, 2003, and later changed to its current name on May 26, 2009. Its business scope is similar to Qunar Company. On June 6, 2003, the domain name "quna. com" was registered and transferred to Quna Company in May 2009. The company then registered domain names such as "123quna. com" and "mquna. com", and used the names of "Qunar", "Qunar", "Qunar website", and "quna. com" to promote and operate externally. Qunar requested Qunar to stop Unfair competition and compensate the loss of 3 million yuan on the ground that Qunar's above behaviors constituted Unfair competition. The Intermediate people's court of Guangzhou held in the first instance that Qunar's use of "Qunar", "Qunar", "Qunar.com" and "quna.com" service marks constituted an infringement on the unique name of Qunar's well-known services, Qunar's use of "Qunar" in its corporate name constituted Unfair competition, and Qunar's use of "quna.com", "123quna.com" The act of using the "mquna.com" domain name constitutes an infringement of Quna's domain name rights. Thus, it was decided that Qunar Company should stop using the aforementioned enterprise name, service mark, and domain name, and transfer the aforementioned domain name to Qunar Company within a specified period of time; Which company will compensate Quna Company for economic losses of 350000 yuan. Which company appeals against the first instance judgment. The second instance of the High people's court of Guangdong Province held that Qunar Company's use of "Qunar" enterprise name and "Qunar" logo constituted Unfair competition. Qunar enjoys legal rights and interests in the domain name "quna. com", and there are legitimate reasons for using the domain name. According to Article 4 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes involving Computer Network Domain Names, it does not constitute Unfair competition. Qunar's subsequent registration of "123quna. com" and "mquna. com" domain names should also be allowed to be registered and used. Both parties enjoy the rights and interests of domain names of legitimate origin, and need to tolerate, respect and coexist with each other for a long time. One party cannot deprive the other party of Lebensraum because of the promotion of popularity in the business process; The other party should not maliciously cling to the goodwill of the well-known party in order to seek illegitimate commercial benefits. Accordingly, Qunar has the right to continue to use domain names such as "quna. com", but also has the obligation to add distinctive marks on search links and websites related to domain names, so that consumers can distinguish the above domain names from Qunar's "Qunar", "Qunar. com" and other well-known service unique names. The second instance court upheld the judgment of the first instance on which company to stop using the "go where" enterprise name and "go where" signs; The decision to stop using domain names such as "quna. com" and transfer the aforementioned domain names to Quna Company within a specified period has been revoked, and the compensation amount has been adjusted accordingly to 250000 yuan.

Typical significance: This case distinguishes between the criteria for determining domain name similarity and trademark similarity, as well as the principles for handling rights conflicts. Qunar Company used the previously registered domain name "quna. com", and Qunar Company's "Qunar Network" is a unique name for well-known services, and registered the domain name "qunar. com". The difference between two domain names is only one letter "r", forming a similar domain name. However, the court believes that they can coexist for a long time based on: firstly, the domain name has global uniqueness. Due to the length limit of the domain name, the maximum capacity for global domain registration does not exceed 4.3 billion. If it is stipulated that similar domain names cannot be registered, it is not cost-effective from an economic perspective. Second, domain names are recognized by the computer System identification, and computers can accurately distinguish very similar domain names, without confusion. The significant difference in accuracy between electronic technology and sensory senses is the main reason for the difference in judgment standards between domain name approximation and trademark approximation.

5. "ATT7021AU" Integrated Circuit Layout Design Exclusive Rights Infringement Dispute Case

The appeal case of Juquan Optoelectronic Technology (Shanghai) Co., Ltd., Shenzhen Ruineng Micro Technology Co., Ltd., and Shanghai Yachuang Electronic Parts Co., Ltd. for infringement of the exclusive right of integrated circuit layout design [Shanghai High people's court (2014) HGMS (Zhi) Zhong Zi No. 12 Civil Judgment]

Summary of Case: Juquan Optoelectronics Technology (Shanghai) Co., Ltd. (referred to as Juquan Company) has completed the design of integrated circuit layout design ATT7021AU (referred to as Juquan Layout Design) and obtained a layout design registration certificate. Juquan Company discovered that Shenzhen Ruineng Micro Technology Co., Ltd. (referred to as Ruineng Micro Company) copied its layout design and manufactured integrated circuit chips RN8209 and RN8209G containing the layout design without its permission, and sold the accused infringing chips with Shanghai Yachuang Electronic Parts Co., Ltd. (referred to as Yachuang Company). Juquan Company filed a lawsuit in court, requesting that the two defendants be held liable for infringement. Ruineng Micro Company and Yachuang Company jointly argue that the layout design of the accused infringing chip was independently developed by Ruineng Micro Company and obtained a registration certificate; The layout design of the accused infringing chip is different from that of Juquan; Juquan's layout design does not have originality and belongs to conventional design. We request the rejection of Juquan Company's litigation request. The first instance of the First Intermediate people's court of Shanghai decided Juquan Company to stop infringement, compensate for losses and reasonable expenses totaling 3.2 million yuan. Juquan Company and Ruineng Micro Company are both dissatisfied and have filed an appeal. After hearing, the High people's court held that: first, due to the limited space for innovation in the layout design of integrated circuits, a stricter standard should be adopted in the determination of layout design infringement for the determination of two layout designs that constitute the same or are substantially similar, However, the corresponding layout design of the accused infringing chip is still substantially similar to the "layout of the connection between digital and analog ground rails" and "layout of the independent booster circuit" in Juquan's layout design. Secondly, the evidence materials submitted by Ruineng Micro Company in this case are insufficient to prove that the "layout of the connection between digital and analog ground rails" and "independent booster circuit layout" in Juquan's layout design are conventional designs. Thirdly, any original part of a protected layout-design is protected by law, regardless of its size or role in the entire layout-design; Ruineng Micro Company partially copied the layout design of Juquan, not for personal purposes or solely for evaluation, analysis, research, teaching, etc., but for the purpose of developing new integrated circuits for commercial use; Ruineng Micro Company acknowledges that it was exposed to Juquan layout-design rather than obtained through reverse engineering. Therefore, regardless of whether the layout-design of the accused infringing chip is original or not, Ruineng Micro Company's actions are not applicable to Article 23 (2) of the Integrated Circuit layout-design Protection Regulations, which has infringed on Juquan layout-design exclusive rights. Fourthly, considering the non core and main role played by the confirmed infringing two parts of the layout design in the accused infringing chip, and the relatively small layout area occupied, as well as the R&D investment and shortened R&D time saved by Ruineng Micro Company by directly copying the corresponding layout design of Juquan Company, the first instance discretionary judgment awarded Ruineng Micro Company compensation for Juquan Company's economic losses, including reasonable expenses, of 3.2 million yuan, which is not inappropriate. Therefore, the second instance court rejected the appeal and upheld the original judgment.

【 Typical Significance 】 This case is a very typical infringement dispute on integrated circuit layout design. The defendant in this case claims that the criteria for determining infringement of integrated circuit layout design should have the concept of similarity. Only when an integrated circuit layout design completely plagiarizes or substantially resembles another person's layout design without its own original design, can it constitute infringement of the exclusive rights of another person's integrated circuit layout design. The court of second instance held that, according to the Regulations on the Protection of Integrated Circuit Layout Designs, copying any original part of the layout design protected by the right holder without the permission of the right holder constitutes infringement. This infringement judgment standard strengthens the incentive for innovation in integrated circuit layout design. At the same time, this case adopts strict identification standards for "substantial similarity" in infringement judgment. The judgment in this case aims to balance the interests of the rights holders and competitors, and promote the healthy development of the integrated circuit layout design industry.

6. Case of "NetEase Cloud Music" infringing on the right to information network dissemination through pre litigation injunction dispute

Prelitigation injunction case of a dispute between Shenzhen Tencent Computer System Co., Ltd. and Guangzhou NetEase Computer System Co., Ltd. on infringement of the right of information network dissemination of music works [Wuhan Intermediate people's court of Hubei Province (2014) EWHZBZ No. 5, 5-1, 5-2 civil rulings]

[Abstract] Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to as Tencent) applied to the Intermediate people's court of Wuhan for a pre litigation injunction, requesting that: 1. Guangzhou NetEase Computer System Co., Ltd. (hereinafter referred to as Guangzhou NetEase), NetEase (Hangzhou) Network Co., Ltd. (hereinafter referred to as Hangzhou NetEase) Hangzhou NetEase Thunderfire Technology Co., Ltd. (referred to as NetEase Thunderfire) has stopped disseminating 623 songs, including "Where Has Time Gone", "Love's Support", and "Picture Heart", that the applicant enjoys exclusive copyright to the public through the "NetEase Cloud Music" platform (music.163.com and its PC and mobile clients); 2. Order China United Network Communications Co., Ltd. Hubei Branch (referred to as Hubei Unicom) to stop providing "NetEase Cloud Music" Chang Ting traffic package service; 3. Order Guangdong Oper Mobile Communication Co., Ltd. (referred to as Guangdong Oper) to stop incorporating "NetEase Cloud Music" into its OPPO brand phones. Tencent has submitted evidence to prove its ownership of the copyright of the music works involved and the fact that it has suffered infringement damages, and has provided guarantees. The Intermediate people's court of Wuhan held that Tencent enjoyed the right of information network communication for the above 623 music works in accordance with the law, and the fifth respondent provided a large number of music works involved in the case to the public by means of the Internet, mobile phone "Netease Cloud Music" flow package, built-in "Netease Cloud Music" mobile phone client, etc., which was suspected of infringing Tencent's right of information network communication for the music works involved in the case in accordance with the law, And the respondent provided a large number of music works to the public, causing huge economic losses to Tencent. In the online environment, if this behavior is not prohibited in a timely manner, it will further rapidly increase the market share obtained by Guangzhou NetEase through improper use of others' rights, damaging Tencent's interests, and this damage will be difficult to compensate. Therefore, it is reasonable to prohibit each respondent from spreading 623 music works suspected of infringement through the internet. Therefore, the ruling issued the following pre litigation injunction measures: 1. Guangzhou NetEase, Hangzhou NetEase, and NetEase Thunderfire immediately ceased providing 623 music works related to the case to the public through the "NetEase Cloud Music" platform from the effective date of the ruling; 2. Hubei Unicom immediately ceased providing mobile network services to its mobile phone customers for the 623 music works involved in the case in the "NetEase Cloud Music" Chang Ting traffic package from the effective date of the ruling; 3. Within ten days from the day following the effective date of the ruling, Guangdong Oper shall cease the dissemination of 623 music works related to the case to mobile phone customers through the "NetEase Cloud Music" client built-in in its OPPO R830S model (contract machine) mobile phone. After the ban was issued, Hubei Unicom and Guangdong Oper immediately stopped the accused behavior. Guangzhou NetEase, Hangzhou NetEase and NetEase Thunder refused to accept the ban and applied for reconsideration, which was rejected by the Intermediate people's court of Wuhan City. During the review, Tencent found that the accused behavior was still ongoing and applied in writing for punishment for violating the ban. The court shall take corresponding punitive measures. After the issuance of the reconsideration decision, the accused behavior has been completely stopped in accordance with the injunction requirements.

[Typical significance] In recent years, the combination of the network industry and the music industry has formed a new media of Internet culture, which can enable music works to be transmitted, downloaded and repeatedly appreciated without restrictions. While it is convenient for the public to enjoy music, pirated network music has also caused irreparable damage to copyright owners. In this case, the court issued the pre litigation injunction in a timely manner and punished the violations of the injunction, which provided a feasible Protected mode for combating online music piracy, regulating the online music market, and regulating the network environment, fully reflecting the leading role of judicial protection of intellectual property rights.

2、 Intellectual Property Administrative Cases

7. Administrative Dispute Case of "Daoxiangcun" Trademark Objection Reexamination

Suzhou Daoxiangcun Food Industry Co., Ltd., Trademark Review Committee of the State Administration for Industry and Commerce, and Beijing Daoxiangcun Food Co., Ltd. Trademark Objection Review Administrative Dispute Appeal Case [Beijing High People's Court (2014) Gao Xing Zhong Zi No. 1103 Administrative Judgment]

[Abstract] Beijing Daoxiangcun Food Group filed an application for the registration of the "Daoxiangcun" trademark (referred to as the citation trademark) in January 1996, and was approved to register in May 1997. The approved products are pies, dumplings, rice cakes, Zongzi, Yuanxiao (Filled round balls made of glutinous rice-flour for Lantern Festival), etc. of category 30. After approval, the name of the trademark registrant has been changed to Beijing Daoxiangcun Food Co., Ltd. (referred to as Beijing Daoxiangcun Company). In July 2006, Suzhou Daoxiangcun Food Industry Co., Ltd. (referred to as Suzhou Daoxiangcun Company) filed an application for the registration of the "Daoxiangcun and Tu" trademark (referred to as the disputed trademark), specifying the use of Class 30 biscuits, bread, pastries, etc. After the preliminary approval announcement of the disputed trademark, Beijing Daoxiangcun Company filed an objection application. The Trademark Office of the State Administration for Industry and Commerce has ruled that the opposed trademark is allowed to be registered. Beijing Daoxiangcun Company applies for review. The Trademark Review and Adjudication Board believes that the opposed trademark and the cited trademark are similar trademarks, and the goods designated for use by the opposed trademark and the goods approved for use by the cited trademark are similar goods. Although Suzhou Daoxiangcun Company has experienced prior acquisition of two trademarks (referred to as "prior acquisition trademarks") consisting of "Daoxiangcun" text, "DXC" letters, and graphic frames in biscuits, pastries, and other goods, these two trademarks differ significantly from the disputed trademark in terms of expression, and are closer to the well-known cited trademark "Daoxiangcun" used by Beijing Daoxiangcun Company for a long time. If allowed to register, It will break the established market order and increase the possibility of confusion between the market and the relevant public. Therefore, the disputed trademark and the cited trademark constitute similar trademarks used on similar goods as referred to in Article 28 of the Trademark Law, and it is decided not to approve the registration of the disputed trademark. Suzhou Daoxiangcun Company is dissatisfied and has filed an administrative lawsuit. The first instance decision of the First Intermediate people's court of Beijing upheld the ruling of the Trademark Review and Adjudication Board. Suzhou Daoxiangcun Company is dissatisfied and has filed an appeal. The second instance of the Beijing High People's Court held that the "Daoxiangcun" trademark of Beijing Daoxiangcun Company has gained high popularity after long-term use, and there has been a real and stable market order that can be distinguished from the trademark obtained by Suzhou Daoxiangcun Company earlier. The disputed trademark has a significant difference from the previously obtained trademark, and is actually very similar to the cited trademark of Beijing Daoxiangcun Company. Therefore, the application for registration of the disputed trademark by Suzhou Daoxiangcun Company cannot be considered as a continuation of its previously acquired Daoxiangcun trademark reputation, but rather an invasion of the exclusive rights of Beijing Daoxiangcun Company's trademark, breaking the market reality that can be distinguished and the stable market order that has already been formed, This will lead to confusion and misunderstanding among consumers regarding the origin of the goods, and therefore the appeal will be rejected and the first instance judgment will be upheld.

[Typical Significance] Due to historical reasons, different enterprises have used similar trademarks for a long time. If one party separately applies for a trademark with similar constituent elements, and the market pattern has been objectively formed, in the application of Article 28 of the Trademark Law for trademark similarity judgment, in addition to considering the degree of similarity of the trademark itself, the actual use status, use history, and relevant public awareness of the trademark should also be considered The subjective state of the user and other factors are comprehensively judged based on the possibility of confusion and misidentification, and attention is paid to maintaining the established and stable market order, to prevent simply equating the constituent elements of a trademark with that of a trademark.

8. "Zhujiazhuang Typhoon shelter and its figure" trademark dispute administrative dispute case

Administrative dispute on trademark dispute between Typhoon shelter Food Co., Ltd. and the Trademark Review Committee of the State Administration for Industry and Commerce, and Shanghai Panshi Yizhou Catering Management Co., Ltd

[Abstract] Shanghai Zhujiazhuang Food Co., Ltd. (hereinafter referred to as "Zhujiazhuang Company") applied for the registration of the trademark "Zhujiazhuang Typhoon shelter and Figure" (i.e. the disputed trademark) in 1999. The Trademark Office of the State Administration for Industry and Commerce approved the registration on July 28, 2000, and designated it to be used in services such as "restaurants, bars, restaurants" in category 42 of the international classification. The trademark in dispute is composed of the bamboo pattern and the Chinese character "Zhujiazhuang Typhoon shelter". On December 27, 2010, Shanghai Panshi Yizhou Catering Management Co., Ltd. was granted the disputed trademark. On November 11, 2003, Shanghai Typhoon shelter Food Co., Ltd. (hereinafter referred to as Typhoon shelter Company) filed an application for the revocation of the disputed trademark, mainly for the following reasons: 1. Zhujiazhuang Company applied for the revocation of No. 1055861 "Typhoon shelter BFT" trademark on August 1, 1999, on the ground that the word "Typhoon shelter" was a "dish name". After two reviews, No. 1055861 trademark was revoked. Since Zhujiazhuang Company believed that "Typhoon shelter" could not be registered as a trademark, it applied for registration of "Typhoon shelter" as a part of the disputed trademark. The purpose of revoking the No. 1055861 trademark was to remove the registration obstacles of the disputed trademark maliciously. 2. Shanghai Typhoon shelter Co., Ltd. was established on September 15, 1998, and has become a well-known brand in the catering industry in Shanghai through efforts. It has been licensed to use and accept the trademark No. 1055861 "Typhoon shelter BFT". The purpose of the cancellation of No. 1055861 trademark and the registration of the disputed trademark by Zhujiazhuang Company is to take the Hitchhiking of Shanghai Typhoon shelter Company. The Trademark Review and Adjudication Board made a trademark dispute ruling No. 30896 [2008], which upheld the disputed trademark. Shanghai Typhoon shelter Company refused to accept the ruling and filed an administrative lawsuit. The first instance decision of the First Intermediate people's court of Beijing upheld the No. 30896 trademark dispute ruling. Shanghai Typhoon shelter Company appealed against the judgment of first instance. During the second instance, Shanghai Typhoon shelter Company submitted the Civil Ruling of the Supreme People's Court (2007) MSJZ No. 21-1 to the court. After hearing, the Beijing High People's Court held that the civil ruling (2007) MSJZ No. 21-1 did not specify the specific time when "Typhoon shelter" became a trademark used by Typhoon shelter Company and had certain influence, which was not sufficient to prove that the registration of the disputed trademark was a trademark used by Typhoon shelter Company and had certain influence by unfair means. The second instance decision rejected the appeal and upheld the first instance decision. Shanghai Typhoon shelter Company refused to accept the judgment and applied to the Supreme People's Court for retrial. The Supreme People's Court held that the revocation of No. 1055861 "Typhoon shelter BFT" trademark was not related to the registration of the disputed trademark; In the trademark dispute administrative procedure, Typhoon shelter Company did not claim that the disputed trademark infringed its enterprise name right. Moreover, the word "Typhoon shelter" is not only the name of Typhoon shelter Company, but also has the meaning of "shelter from typhoon" and "a kind of flavor cuisine or cuisine cooking method". Therefore, Shanghai Typhoon shelter Company cannot prohibit others from using the word "Typhoon shelter" in the above meaning with its corporate name right. The "Zhujiazhuang" words and bamboo patterns in the disputed trademark have more functions of identifying the source of goods or services. Therefore, the registration and use of the disputed trademark will not cause confusion and misunderstanding among the relevant public, and will not infringe the corporate name right of Shanghai Typhoon shelter Company. Therefore, the judgment of second instance was upheld and the retrial request of Shanghai Typhoon shelter Company was rejected.

Typical significance: This case involves the issue of how to handle the relationship between protecting the interests of intellectual property rights holders and maintaining the public interest in the trial of intellectual property cases. In this case, the revocation applicant claims that the registration of the disputed trademark infringes on their corporate name rights. However, since the revocation applicant's trade name serves as a written symbol and also has other meanings widely recognized by the public, the revocation applicant has no right to prohibit others from using this written symbol in other meanings. Moreover, other symbols with significant identification features were added to the disputed trademark in this case, further avoiding the possibility of confusion and misidentification among consumers. This case has positive significance in defining the boundary between intellectual property rights holders and the public, and preventing symbolic intellectual property rights holders from using "symbol enclosure" to encroach on the public domain.

9. Administrative Dispute on Invalidation of Invention Patent Rights for "Drug Compositions and Their Preparation Methods for Treating Breast Hyperplasia Diseases"

Application for retrial of patent administrative dispute between Beijing Yadong Biological Pharmaceutical Co., Ltd. and the Patent Reexamination Committee of the China National Intellectual Property Administration, Shandong Huayang Pharmaceutical Co., Ltd. [Supreme People's Court (2013) Zhi Xing Zi No. 77 Administrative Ruling]

Summary of Case: Beijing Yadong Biopharmaceutical Co., Ltd. (referred to as Yadong Pharmaceutical Company) is the patentee of the invention patent (referred to as this patent) titled "Drug composition and preparation method for treating breast hyperplasia diseases". Shandong Huayang Pharmaceutical Co., Ltd. has filed a request for invalidation of this patent, and the submitted evidence 1 and evidence 3 are the functional indications, prescriptions, and related preparation methods of the "Rukuai Xiaopian" disclosed in the Pharmacopoeia. The Patent Reexamination Board has made Decision No. 15409, determining that this patent does not possess creativity and declaring it invalid in its entirety. Yadong Pharmaceutical Company is dissatisfied and has filed an administrative lawsuit. The First Intermediate people's court of Beijing held that according to the notarial certificate proving that the clinical efficiency of Evidence 1 is lower than that of the patent, namely, the counter evidence 4, the total efficiency of the granules in the patent is 95.70%, and the total efficiency of the tablets in Evidence 1 is 89.32%. Claim 1 of the patent has made remarkable progress. The decision No. 15409 was subsequently revoked. The Patent Reexamination Board is dissatisfied and files an appeal. The second instance judgment of the Beijing High People's Court annuls the first instance judgment and upholds decision No. 15409. Yadong Pharmaceutical Company is dissatisfied and applies for a retrial. The Supreme People's Court believes that in the absence of a specific measurement method for the total effective rate disclosed in Evidence 4, it cannot be determined that the total effective rate of Evidence 4 and this patent was determined using the same measurement method under equivalent conditions. The above comparative data cannot prove whether this patent has significant progress in clinical efficacy; Even if the above comparative data is recognized, due to the omission of the vacuum drying step in the preparation of granules in this patent, the impact on the active ingredients of the drug is correspondingly reduced. Those skilled in the art can reasonably expect that omitting the vacuum drying step will improve the overall efficiency of the drug. The patent holder has not provided evidence to prove that it exceeds the reasonable expectations of those skilled in the art. Therefore, the ruling rejected the retrial application of Yadong Pharmaceutical Company.

In this case, the Supreme People's Court clarified that technical contributions not recorded in the specification cannot be used as the basis for requesting patent protection, and when determining whether an invention has unexpected technical effects, comprehensive consideration should be given to the characteristics of the technical field described in the invention, especially factors such as the predictability of the technical effects and the technical inspirations existing in the existing technology. In addition, it is also clarified that the identification of distinguishing technical features should be based on the technical features recorded in the claims. The judgment in this case has important guiding significance for the trial of administrative disputes over drug patent authorization and confirmation.

3、 Intellectual Property Criminal Cases

10. Crime of Copyright Infringement by Zhou Zhiquan and 7 Others in the Business Ideas Network

The case of 7 defendants, including Zhou Zhiquan, infringing upon copyright [The First Intermediate people's court of Beijing (2014) YZXZZ No. 2516 Criminal Ruling]

Summary of the Case: The defendant Zhou Zhiquan registered and established Beijing Xintian Yipin Technology Co., Ltd. in August 2008, operating a website for business ideas. The Ideas website consists of a portal website (www.siluhd. com) and a Ideas forum (bbs. siluhd. com), with the HDstar forum (www.hdstar. org) as the internal website of the Ideas website. From January 2009 to April 2013, the defendant Zhou Zhiquan hired defendants Su Liyuan, Cao Jun, Jia Jingyang, Li Furan, and others to upload a large number of films, music, and other works that others enjoyed copyright in seed form to the HDstar forum without the permission of the copyright owner, for more than 26000 registered members to download, advertise on the Ideas website, and profit from registering invitation codes and VIP membership through sales websites. Defendant Kou Yujie hired Defendant Cui Bing and others from May 2012 to April 2013 to copy films owned by others into over 4000 hard drives without permission from the copyright owner, and sold them through Taobao online stores. The first instance of the Haidian District People's Court of Beijing held that the defendant Zhou Zhiquan employed the defendants Su Liyuan, Cao Jun, Li Furan, and Jia Jingyang for profit, without the permission of the copyright owner, to disseminate the works of others through information networks, and the circumstances were particularly serious; The defendant Kou Yujie hired the defendant Cui Bing for profit, without the permission of the copyright owner, to reproduce and distribute the works of others. The circumstances are particularly serious, and the above-mentioned actions of the defendant have constituted a crime of copyright infringement and should be punished. The court shall, in accordance with the role of each defendant in the joint crime and their attitude of confession, impose a mitigated or lenient punishment or apply a suspended sentence in accordance with the law. Each defendant shall be sentenced to one to five years in prison, and shall also be fined. After the verdict was pronounced in the first instance, the defendants Su Liyuan and Kou Yujie filed an appeal. The second instance of the First Intermediate people's court of Beijing rejected the appeal and upheld the original judgment.

【 Typical Significance 】 The idea website is known as the "largest digital high-definition portal website in China" and the "top" Blu ray high-definition website in China. The management team of Thinking Network has gathered multiple IT elites, and the defendants in the case all have a university education level. The website publishes high-definition information and movies, and appears to be a regular website introducing Blu ray technology. However, the "HDstar Forum" it links to contains a large number of pirated movies and TV series resources in Blu ray high-definition format that can be downloaded for payment. Many pirated high-definition film sources on the network come from Think Network. Through this approach, ThinkNet has accumulated a large number of registered users and become the most "famous" pirated high-definition movie website in China. The judgment in this case plays an important role in combating copyright crimes and protecting intellectual property rights in the internet environment.