Weekly China Trademark News Updates

August 16, 2023

1. Tesla sued an infringer for using “Tesla Used Car in Chinese” and was awarded RMB 300,000 in compensation

Tesla Motors. INC. (later changed to “Tesla, Inc.”) is the owner of the “ ” mark with reg. nos. 12492119 and 13690440, the “Tesla in Chinese” mark with reg. nos. 13690434 and 13690432, the “” mark with reg. nos.  12492124 and 13698035, the “TESLA” mark with reg. nos. 13690428 and 7792673, and the “” mark with IR. No. 1199687.  Tesla, Inc.  is the copyright owner of the “TESLA T Design (TESLA T)” artwork that was completed on June 23, 2005. On September 14, 2021, Tesla, Inc.  issued a “General Power of Attorney” that authorized Tesla (Shanghai) Co. Ltd. (“Tesla”) to use or authorize a third party to use all Tesla’s registered or future intellectual property rights in China mainland, including but not limited to exclusive trademark right, copyright, etc. Tesla was also authorized to take administrative, civil, and criminal actions on behalf of Tesla, Inc.  Tesla sued Tesla Used Car (Guangzhou) Co., Ltd. Changsha Branch for trademark infringement, copyright infringement, and unfair competition.

After trial, the court stated that the underlying action for trademark infringement is that the use of the allegedly infringed trademark shall be trademark use as defined in the Trademark Law. The defendant argued its use was an objective description of its services that did not constitute as trademark use. The defendant used three logos on its signboard, “,” “,” and “,” all of which were identical or similar to the plaintiff’s registered trademarks. The defendant was not only using the same or similar logos on the signboard, but also used the same logos extensively on the background wall and promotional posters inside the store. In addition, the court’s findings shown that Tesla (Guangzhou) Used Car Sales Co., Ltd., an affiliate of the defendant’s parent company, registered a large number of marks identical or similar to Tesla’s registered trademarks between 2020 and 2022. Such action displayed the defendant’s parent company, Tesla Used Car (Guangzhou) Co., Ltd., did not have good faith in its subjective use of Tesla’s trademarks and goodwill. As a branch company, the defendant was an operator in the automobile sales industry, and its awareness of the Tesla brand was significantly higher than other ordinary companies. It was obviously inappropriate and unreasonable for the defendant to use a large number of logos that were identical or similar to the plaintiff’s registered trademarks inside and outside of the store and in promotional materials. In sum, the logos used by the defendant on the signboard of the store, the backdrop posters, and the indoor background wall constituted the function of identifying the source of the service and were not simply descriptive use, but constitute trademark use.

Regarding whether the defendant infringed the plaintiff’s trademark right, first, regarding the similarity of goods and services, Tesla’s registered trademarks include Class 12 for “electric vehicles, electric vehicles, etc.” and Class 37 for “vehicle maintenance and repair, vehicle service station (refueling and maintenance), vehicle (vehicle) failure rescue, etc.” As a used car seller, the defendant provided used car sales and related services at its premises. Although there were some differences between the classes for services approved under Tesla’s registered trademarks, through promotion and use of its trademarks, Tesla’s trademarks has a high degree of distinctiveness, and while being used in automobiles and other vehicles, it has obtained higher popularity in cars and its related field. The scope of Tesla trademark protection should be commensurate with its popularity, and it should obtain a wider scope of protection. Based on this, compared with the services provided by the defendant and the goods and service classes approved under Tesla’s trademarks, the two were identical in terms of service content, consumers, sales methods, channels, etc. They were basically identical in terms of aspects, and there was a specific association, which was likely to cause confusion among the relevant public and can be deemed as similar goods and services. Second, regarding whether the logos are identical or similar, after isolation and comparison, the alleged infringing logo “” was consistent in shape with the plaintiff’s registered trademark “,” which constituted identical trademark under the Trademark Law. The “Tesla in Chinese” logo in the accused infringing logo “” was consistent with the “Tesla in Chinese” trademark, which constituted identical trademark. Compared with the plaintiff’s “TESLA” and “” trademarks, the “TESILA” in the accused infringing mark “” has one more letter “I” than Tesla’s registered trademarks, but this did not contribute a substantial difference. There was basically no visual difference. The relevant public cannot distinguish the two when paying general attention, which will easily cause confusion and misidentification by the relevant public. These marks constituted similar marks. Third, regarding whether the defendant’s use of the logo was fair use. The defendant prominently and extensively used logos identical or similar to Tesla’s registered trademarks on signboards, store decorations, and in-store advertising posters on its business premises. Such use was likely to make the relevant public associate the identity of the defendant’s store with the specific product source of Tesla electric vehicles, and make the relevant public mistakenly believe that the defendant was legally authorized by Tesla, or that it was associated Tesla’s official used car dealer or a dealer that were closely related to Tesla. These actions were likely to cause confusion to the relevant public to believe that there were special associations, corporerations, or authorizations between Tesla and the defendant. Therefore, the defendant’s use of its logos constituted trademark infringement.

Regarding copyright infringement, Tesla enjoys copyright to the  artwork based on the registration certificate submitted when the defendant could not provide contrary evidence. The defendant used Tesla’s artwork without authorization on its store signs, interior decorations, and promotional posters, which has infringed Tesla’s right of authorship and reproduction. Regarding the defendant’s defense that Tesla’s artwork and its trademarks constituted coopetition, and it was inappropriate to be judged twice, the court held that trademark rights and copyrights were two different types of rights, and there were obvious differences in protection objects, legislative purposes, and protection principles. Therefore, an act constituted an infringement of both copyright and trademark constituted coopetition, but no repeated judgement.

Regarding unfair competition, first, in this case, Tesla enjoys the exclusive right to use the “Tesla in Chinese” trademark, and its “Tesla in Chinese” brand has already gained certain influence through operation and promotion. Subjectively, the defendant clearly has the intention of taking advantage of Tesla’s well-established reputation by using its registered trademarks “Tesla in Chinese” as its corporate name without authorization. The word “Tesla in Chinese” is a core identification element in Tesla’s corporate name. “Tesla in Chinese” contained in the defendant’s company name is the same as Tesla’s registered trademark and company name, which was likely to cause confusion to the relevant public to believe that the defendant is Tesla’s branch or has other relationship with Tesla, which constituted unfair competition. Second, the defendant used the words “the unique Tesla franchised used car in China” in its publicity. The word “unique” was used with an absolute meaning to describe its own business, which strengthened its connection with Tesla. With normal cognitive and reading logic, ordinary consumers would believe that it is a direct store of Tesla or has a certain connection with Tesla, which will easily lead to misunderstandings by the relevant public, thereby increasing the defendant’s own competition. Therefore, the court supported the plaintiff’s claim that the defendant constituted false propaganda.

In summary, the court determined that the defendant should compensate economic losses and reasonable expenses totaling RMB300,000 (USD41,110) based on factors such as the popularity of the trademark, the nature and circumstances of the defendant’s infringement, and Tesla’s need to obtain evidence and entrust a lawyer to defend its rights.

2. Theatrical performances infringed trademark rights and were suspected of false advertising

Recently, the Beijing Market Supervision and Administration Bureau imposed administrative penalties on trademark infringement and unfair competition case in the field of theatrical performances.

The Beijing Chocolate Children’s Art Troupe Co., Ltd. (“Chocolate Children’s Art”) used a poster promotional image with a graphic logo of “Jurassic Period in Chinese” on its website, WeChat official account and when selling performance tickets. The graphic logo was composed of a rectangle superimposed on the lower part of a circle. On the upper part of the circle, there was a relief picture of the upper body of a dinosaur bone, the background color was sky blue, and the words “Jurassic Period in Chinese” and “Jurassic period” were on the rectangle. UNIVERSAL CITY STUDIOS LLC is the owner of the  trademark with reg. no. 225445 (“Cited Mark”) in class 41 for “organizing educational or entertainment competitions; organizing performances (performances).” The actions of Chocolate Children’s Art constituted trademark infringement. Since the Cited Mark was registered on November 28, 2020, and is valid until November 27, 2030, the infringement period of Chocolate Children’s Art should be calculated from November 28, 2020. According to the agreement, Chocolate Children’s Art’s total income after November 28, 2020 totaled RMB238,747 (USD32,721).

Chocolate Children’s Art used posters with the logos of “THE CROODS” and “The Croods in Chinese” on its promotional posters in its WeChat public account. DREAMWORKS ANIMATION L.L.C. is the registrant of the “The Croods in Chinese” mark with reg. no. 14821246 that was approved to use in Class 41 for “radio and television program production; performance production” and so on. The actions of Chocolate Children’s Art constituted trademark infringement. Consider that the “The Croods” has not been performed due to COVID-19, there was no illegal turnover.

In addition, from the end of 2019, Chocolate Children’s Art has used “THE CROODS” and “The Croods in Chinese” in its WeChat public account for publicity, using the words “French Avignon Theater Festival Parent-child Interactive Repertoire” and “English version screenwriter/director Ariane Mnouckine, Chinese version adaptation/director Cheng Weishu (Hong Kong, China), art director Herbert mdash, production and production of Pamir performance, France” and other content to conduct commercial promotion for the production of the performance “The Croods.” After investigation, the children’s play “The Croods” produced and performed by Chocolate Children’s Art neither has any recommendation books and documents related to “repertoires recommended for parent-child interaction at the Avignon Theater Festival in France,” nor has any relevant cooperation agreements and documents with the listed personnel. The poster promotional pictures were designed by its employees using still photos as the base map. At the same time, the children’s drama “The Croods” produced and performed by Chocolate Children’s Art was completely self-written in accordance with the script “the Croods” that matched the copyrighted artwork registration certificate. It was completed without any adaptation, and the screenwriter and director were all its personnel. The Beijing Municipal Market Supervision Administration found that the aforementioned publicity of Chocolate Children’s Art constitutes false advertising publicity for the performances of “the Croods,” violated Article 8, Paragraph 1 of the “Anti-Unfair Competition Law.”

Based on the above, the Beijing Market Supervision and Administration Bureau imposed administrative orders a penalties of RMB 558120.68 (USD76,491) in total.

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Weekly China Trademark News Updates

August 10, 2023

1. Consent letter from an associated company was not accepted by court in a trademark rejection appeal case

GFM GMBH TRADEMARKS (“GFM”) applied for the registration of the “” mark in November 2020, designated for use on “Footwear; Boots; Shoes; Sandals; Boot uppers; Insole; Soles for footwear; Fittings of metal for footwear” products. The CNIPA cited 9 prior marks of “,” “,” “,” “,” “,” “,” “,” etc. co-owned by “DR.MARTENS” INTERNATIONAL TRADING GMBH and “DR.MAERTENS” MARKETING GMBH (“DR. MARTENS”) in refusing the Disputed Mark from registration. GFM appealed. During the refusal review, the CNIPA found that the Disputed Mark and the Cited Marks 1 to 9 constituted similar marks used on identical or similar goods. Although GFM provided a signed consent letter with DR. MARTENS, the Disputed Mark was relatively similar to the Cited Marks, and the likelihood of confusion and misidentification by the relevant public cannot be ruled out, so this evidence was not accepted.

GFM appealed to the Beijing Intellectual Property Court and submitted its shareholder list which showed that each of the DR. MARTENS is 25% shareholder.

The first instance court held that since the distinctive part of the Disputed Mark “MARTENS” appeared in the distinctive parts of Cited Marks, the Disputed Mark and each of the Cited Marks share relatively high degree of similarity. Regarding the proof of affiliation of the Cited Marks’ owners submitted by GFM, considering that they each hold 25% of GFM’s shares and 50% in total, they are not the controlling shareholder. Their correlation was not strong enough. For the Disputed Mark and the Cited Marks with such a high degree of similarity, the relevant public was likely to confuse them, so it should be determined that the Disputed Mark and the Cited Marks constituted similar trademarks.

GFM appealed to the Beijing High Court where the court handed down the final judgment.

In its decision, the second instance court stated that consent letter shall be genuine, legitimate, and valid, and shall not damage national interests, social public interests, or the legitimate rights and interests of third parties. According to the legislative intent of the trademark law, it should not only protect the interests of the trademark owner, but also protect the interests of consumers. Therefore, in administrative cases of trademark right authorization and confirmation, if the mark sign of the Cited Mark and the Disputed Mark are identical or basically identical, and when used in identical or similar services, a consent letter cannot exclude the application of Article 30 of the Trademark Law.

Although GFM submitted a consent letter, the signs of the Disputed Mark and the Cited Marks shared a relatively high degree of similarity and were basically identical. Therefore, the consent letter cannot be used as a means of excluding possible confusion of the source of goods between the Disputed Mark and the Cited Marks. Although the applicant for the Disputed Mark and the registrants of the Cited Marks are affiliated companies, they are still different entities. This was not a factor to be considered in Articles 30 and 31 of the Trademark Law. Therefore, GFM’s grounds for appeal could be established, and this court did not support it.

2. The Beijing High Court: Abandoning parts of designated services in a litigation does not affect the scope of judicial review

Tencent Technology (Shenzhen) Co., Ltd. (“Tencent”) applied for the registration of the “” mark (“Disputed Mark”) in Class 42, and was first approved in “Research and Development of New Products for others; Dress designing; Graphic arts design,” and refused in “Styling [industrial design]; Design of interior decor; Computer software design; Design and development of computer game software; Software as a service [SaaS]; platform as a service [PaaS].” Among them, the Cited Mark 1 “QUANTUM” blocked the service “Styling [industrial design],” and the rest of the services were blocked by the Cited Mark 2 “QUANTUM in Chinese.” After review, the CNIPA still decided to refuse the Disputed Mark on those rejected services.

Tencent appealed. The first instance court determined that the Disputed Mark and the Cited Marks 1 and 2 constituted similar trademarks used in identical or similar services. Although Tencent submitted evidence in an attempt to prove that the Disputed Mark was relatively famous, the court deemed that as the two Cited Marks’ owners did not participate in the case, Tencent’s evidence was all unilateral evidence, which was not enough to prove that the Disputed Mark can be distinguished from the two Cited marks via use. Therefore, the court dismissed Tencent’s claim.

Tencent further appealed to the Beijing High Court; in its appeal, Tencent claimed that it shall waive the Disputed Mark on “Styling [industrial design]” services, so the Cited Mark 1 should no longer constitute an obstacle.

The second instance court held that, in view of Tencent’s abandonment of the “Styling [industrial design]” service in the second instance lawsuit, the other services on review did not constitute similar to those services under the Cited Mark 1, and the Cited Mark 1 could no longer block the Disputed Mark from registration.

As of the end of the second instance trial, the Cited Mark 2 is still a valid prior registered trademark, and the Disputed Mark and the Cited Mark 2’s distinctive identification part “QUANTUM in Chinese” are similar in terms of text composition, call, meaning, etc., and their coexistence may easily lead to confusion among the relevant public. Therefore, the Cited Mark 2 constituted a prior right obstacle against the Disputed Mark for all the services under appeal except “Styling [industrial design].”

This case is an administrative lawsuit to review the legality of the sued CNIPA decision, and the situation of the Cited Mark 2, which is pending in other proceeding, does not fall into the situation where the lawsuit must be suspended according to the Administrative Procedural Law and relevant judicial interpretations. The court did not grant Tencent’s request to suspend the trial. Therefore, the court made a judgment in May 2022 to reject Tencent’s appeal.

Tencent later petitioned for a re-trial and submitted the trademark gazette published on September 13, 2022, proving that the the Cited Mark 2 had been de-registered, and requested the court to revoke the sued decision and the first and second instance judgments based on these changes in circumstances.

The retrial court held that, regarding the Cited Mark 2, according to the facts found by this court, after the second instance judgment was made, the CNIPA has issued a publication of cancellation of the Cited Mark 2, and it no longer constituted an obstacle to the Disputed Mark’s registration.

However, regarding the determination of the Cited Marks in this case, Tencent claimed that it had explicitly abandoned the “Styling [industrial design]” service, so the Cited Mark 2 was the only cited mark in this case. In this regard, this court found that the Trademark Law did not clearly regulate regarding a trademark applicant’s “abandonment” of certain goods or services during an examination of a trademark application. The “abandonment” of the application for certain goods or service items is essentially where the applicant deletes the designated goods or services. According to the relevant provisions of the Trademark Law and the Regulations for the Implementation of the Trademark Law, if an applicant deletes certain designated goods or services, it shall follow the statutory procedures for amendment. Therefore, if a trademark applicant fails to perform such procedure, the so-called “waiver” statement has no legal effect and cannot change the scope of examination by the competent trademark registration authority. The range of goods or service items designated for use at the time of application shall be reviewed, and a review decision shall be made in accordance with the law. The trial scope of an administrative litigation for a trademark refusal is limited by the scope of the administrative action and should not exceed the scope of the administrative action being sued. On the premise that the administrative authority fails to take corresponding administrative actions on the application for deletion of designated goods or service items, no matter whether the application is filed in the name of abandoning the application for registration of the disputed mark on some designated goods or service items, or in other names, these actions are not subject to the trial scope of the people’s court because they have not been handled by administrative actions. The court should not directly accept the applicant’s application, in any form, for goods/service deletion during a court proceeding, and should not exclude, on such basis, theexamination of whether the Disputed Mark falls under the circumstances specified in Article 30 of the Trademark Law relative to all or some of the Cited Marks.

In the second instance of this case, Tencent stated that it had waived the application for the registration of the Disputed Mark on the reviewed service of “Styling [industrial design],” and claimed that the Cited Mark 1 no longer constituted an obstacle to the Disputed Mark, leaving Cited Mark 2 being the only obstacle. This claim lacks legal basis and should not be supported according to law.

On this point, the second instance judgment made an error in the application of the law, which was corrected in the retrial.

Since the CNIPA should make a re-examination decision, the retrial court cannot predict in this case what the status of the Cited mark 1 would be at the re-examination and whether it still constitutes a prior right obstacle to the registration of the Disputed Mark. Therefore, on the question of whether the Disputed Mark should be preliminarily approved and published, this court will not comment at this time. If Tencent was not satisfied with the re-issued decision made by the CNIPA, it can file a lawsuit in another case according to the law.

3. Overview of IPR crimes in the first half of 2023

The Supreme People’s Procuratorate recently released data showing that in the first half of 2023, procuratorial organs across China accepted, examined, and prosecuted 11,675 people for intellectual property infringement crimes, a year-on-year increase of 36.1%.

Among them, 10,384 people committed trademark infringement crimes, accounting for 88.9% of the intellectual property infringement crimes. Cases concerning cigarettes, liquor, food and health care products, daily chemical products, clothing, luggage, and other traditional areas of people’s livelihood that are closely related to daily life are still relatively frequent. In some cases, trademark infringement is intertwined with the crime of producing and selling counterfeit and inferior products, and with the crime of endangering food and drug safety. In addition, crimes of infringement of trademark rights are gradually spreading to emerging industries, and criminal activities such as selling refurbished electronic products as new products and manufacturing and selling counterfeit auto parts have increased. Some criminals take advantage of the characteristics of “immediacy” and “wide audience” of live broadcasts to sell fakes through “live streaming” and “mixing authentic and fake products.”

In addition, in digital environment, the dissemination of literary works, audio-visual works, musical works, computer software and other works is easier and rapid, accordingly the number of copyright infringement-related cases has increased, and the criminal methods have become more technical.

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Weekly China Trademark News Updates

August 1, 2023

1. Fair use of a mark to illustrate product functionality does not constitute trademark infringement

The Shanghai IP Court made a final judgment on the trademark infringement dispute between Supai Technology (Shanghai) Co., Ltd. (“Supai”) and Shenzhen Jianzi Technology Co., Ltd. (“Jianzi”). The court held that Jianzi’s use of the alleged infringing logo on its package constituted as descriptive fair use of its products and did not constitute as trademark infringement of the cited “Quan Bo Duan in Chinese” mark.

Supai is the exclusive licensee of the “Quan Bo Duan in Chinese” mark who has the exclusive power to initiate a civil lawsuit against an alleged infringer. Supai sued Jianzi for using “Quan Bo Duan Sunscreen in Chinese” without authorization and demanded compensation.

The court found that first, “Quan Bo Duan Sunscreen in Chinese” has a descriptive meaning. According to the evidence provided by Jianzi, wave band is a professional term in physics. Many sunscreen product manufacturers, consumers, relevant marketers, researchers, etc. have widely used “Quan Bo Duan Sunscreen in Chinese” as a vocabulary to describe the function of its sunscreen products. Judging from Supai’s own way of using the cited mark, it also mostly uses “Quan Bo Duan Sunscreen in Chinese” and does not indicate the circle R symbol next to “Quan Bo Duan in Chinese.” It can be seen that Jianzi also used “Quan Bo Duan Sunscreen in Chinese” as a term to describe the function of sun protection clothing.

Second, the accused act was a descriptive use of “Quan Bo Duan Sunscreen in Chinese.” The words used below “Quan Bo Duan Sunscreen in Chinese” was a further explanation and description of its sunscreen function that fully described the sunscreen function of the allegedly infringing products. Meanwhile, considering that Jianzi listed its registered trademarks on the packaging, such use was sufficient to notify that Jianzi’s use of “Quan Bo Duan Sunscreen in Chinese” was to describe the sunscreen function of the allegedly infringing products and not to identify the source of goods.

Third, the accused use was within a reasonable range. The use of “Quan Bo Duan Sunscreen in Chinese” by Jianzi did not exceed the necessary need for describing and explaining the functions of its products, and it will not cause confusion or misidentification to the relevant public.

Finally, the alleged use was done in good faith. Jianzi’s use of “Quan Bo Duan Sunscreen in Chinese” subjectively to show the sun protection function of the product, not to take advantage of the goodwill of Supai’s cited mark.

2. Due to the lack of stable and continuous use, store decoration is not protected by the Anti-Unfair Competition Law

The Beijing IP Court recently concluded a trademark infringement and unfair competition dispute between Tianjin Qihuo and His Friends Catering Management Co., Ltd. (“Qihuo”) and Beijing Wai Wu Di Catering Co., Ltd. (“Wai Wu Di”). The court denied the appeal and affirmed the lower court’s decision.

Qihuo claimed that Wai Wu Di used Qihuo’s influential decorations in the accused offline store without permission, which would easily confuse the relevant public about the source of its services or mistakenly believe that Wai Wu Di provided the services, or there is a specific connection between them, which constituted unfair competition.

The court found that the store decoration claimed by Qihuo was an overall image composed of wall decoration paintings, slogans, trademarks, door curtains, menu styles, tables and chair shapes, and color combinations. It claimed that due to the various sizes of its stores, the decorative elements used varied. This court found that when determining whether the store decoration has been continuously and stably used and publicized by Qihuo to form a stable relationship with it, it should not be compared separately to determine whether the elements are identical or similar. The decisive element is whether the decoration as a whole has a unique style to form an overall business image. According to the evidence, although Qihuo claimed that the elements of its various stores were selected from a specific elements library, and similar elements also overlapped in some of its stores, they were not sufficient to prove that the decoration has been promoted through its use and acquired distinctiveness, which formed a stable and unified overall image that allow consumers to associate such decoration with Qihuo. Moreover, Qihuo’s evidence was insufficient to prove that the relevant public can associate such decoration with it, and obtained certain market reputation. Thus, the first instance did not err in finding that Wai Wu Di’s use of Qihuo’s decoration did not constitute unfair competition.

3. The CNIPA severely cracks down on bad faith trademark registration and hoarding

The CNIPA’s recent press conference regarding the first half of 2023 shows that it has cracked down on a total of 249,000 bad faith trademark registrations, of which 192,000 were refused during filings and oppositions. The trademark rights of 56,000 cases were not confirmed in the right confirmation proceeding, such as the invalidation declaration. At the same time, in the above-mentioned cases, some applicants voluntarily withdrew filings and cancelled trademark registrations in a total of 204,000 cases.

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Weekly China Trademark News Updates

June 29, 2023

1. “Modern in Chinese” constitutes well-known mark on automobiles related goods and imitated mark is invalidated

Disputed Mark	Cited Mark

Henan Liyang Vehicle Industry Co., Ltd. (“Liyang”) filed an appeal against a judgment of the Beijing Intellectual Property Court for administrative trademark litigation on invalidation against the  “Modern Dream in Chinese-MODERN DREAM and Design” mark. On May 30, 2023, the Beijing High Court made a final judgment, rejecting the appeal and affirming the original judgment.

The court found that: if a trademark filed in different or dissimilar goods is a copy, imitation or translation of a well-known mark registered in China by others that misleads the public and may damage the interests of the registrant of the well-known mark, the registration shall not be granted and cannot be used. The following factors shall be considered in determining a well-known mark: (1) the degree of awareness of the mark by the relevant public; (2) the duration of use of the mark; (3) the duration, extent and geographical scope of any publicity work on the mark; (4)  the protection record that the mark is protected as a well-known mark; (5) other factors that make the mark well-known.

In this case, although the word  “Modern in Chinese” is an existing vocabulary, the Cited Mark “Modern in Chinese” has become well-known in automobiles and other goods before the Disputed Mark’s filing date through continuous publicity and use by Hyundai. The Disputed Mark is  “Modern Dream in Chinese-MODERN DREAM and Design,” which completely includes the Cited Mark “Modern in Chinese.” The two are similar in terms of text composition, call, and meaning. Goods such as electric bicycles approved for use by the Disputed Mark and automobiles and other goods approved for use by the Cited Mark belong to means of transportation and are similar in terms of product functions and consumer groups. The registration of the Disputed Mark is likely to mislead the public and make them mistaken the goods under the Disputed Mark are provided by Hyundai, or are associated with Hyundai, which may damage the interests of Hyundai and violate the said provisions of the China Trademark Law.

2. Both first and second instance courts recognized “Miaojie in Chinese” as a well-known mark and granted cross-class protection

Disputed Mark	Cited Mark

The CNIPA and Lianfeng Song appealed against the first-instance administrative judgment over an invalidation of the  “Miaojie in Chinese” mark. On May 22, 2023, the Beijing High  Court made a final judgment, rejecting the appeal and affirming the original judgment.

The court found that in view of the fact that the invalidation petitioner Tuo Pu Company filed an invalidation against the Disputed Mark on January 7, 2020, and it has been more than five years since the Disputed Mark’s approval date.  The issue in this case is whether the Disputed Mark achieves the well-known status and is not subject to the five-year time bar because of its bad faith.

The Disputed Mark  “Miaojie in Chinese” and the Cited Mark  “Miaojie” in Chinese are highly similar in character composition and overall appearance, except for the difference in the traditional and simplified characters of  “Jie in Chinese.” The Disputed Mark constituted a copy and imitation of the Cited Mark. In addition, although “carpet, bathroom anti-slip mat, anti-slip mat, etc.” approved for use by the Disputed Mark and the “saran wrap, etc.” approved for use by the Cited Mark belong to different classes in the CNIPA Classification, they are all daily necessities, and have a high degree of overlap in consumer groups and other aspects, and have a certain associations. Lianfeng Song, as an operator of daily necessities, is an operator in the same industry as Tuo Pu Company, and his application for registration of the Disputed Mark is basically identical to the Cited Mark shows obvious bad faith. Therefore, as the right holder of the Cited mark, Tuo Pu Company has the right to file an invalidation against the Disputed Mark without the five-year time bar.

Under the circumstances that the Cited Mark has constituted a well-known mark and the Disputed Mark constituted a copy or imitation of the Cited Mark.  The relevant public may easily think that the Disputed Mark and the Cited Mark are associated, which will weaken the distinctiveness of the Cited Mark or improperly use the market reputation of the Cited Mark. Therefore, the Disputed Mark shall be declared invalid on all goods approved for use.

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Weekly China Trademark News Updates

June 21, 2023

1. BMW’s “iDrive” mark disputes came to an end. The Disputed Mark constituted  as “squatted with unfair means”

Disputed Mark

The Beijing High Court recently concluded an administrative litigation for trademark invalidation regarding the “IDRIVEERPLUS” (“Disputed Mark”) with Reg. No. 34925244. The court invalidated the Disputed Mark on “recorded computer operating program; vehicle brake tester” citing Article 32 of the 2013 Chinese Trademark Law and ruled that the registrant Beijing Zhixingzhe Technology Co., Ltd. (“Zhixingzhe”) squatted the Disputed Mark by unfair means.

The court found that the evidence submitted can prove that before the Disputed Mark’s application date, BMW’s “iDrive” logo had gained certain fame and influence on the intelligent driving control system of automobiles through long-term use and extensive publicity. The Disputed Mark and the “iDrive” logo previously used by BMW constituted similar marks.

The Disputed Mark’s approved goods for “recorded computer operating program; vehicle brake tester” and other goods were similar to the automobile intelligent driving control system under BMW’s unregistered trademark “iDrive” in terms of function, use, production department, sales channel, consumer, etc., and constituted similar goods. As an automobile operator in related industries, Zhixingzhe should have some understanding of BMW’s “iDrive” unregistered trademark. In this case, Zhixingzhe applied for registration on goods “recorded computer operating program; vehicle brake tester” that are closely related to those goods under BMW’s “iDrive” unregistered trademark. The purpose of filing the Disputed Mark, which was similar to “iDrive”, was hardly legitimate. Therefore, the registration of the Disputed Mark on goods “recorded computer operating programs; vehicle brake testers” had constituted “preempting registration of others that have been used and owned by others” as mentioned in Article 32 of the 2013 China Trademark Law. The Disputed Mark shall be invalidated.

2. The Shanghai High Court recognized the “NOK” mark as a well-known mark and ordered RMB 1 million in damages

The Shanghai High Court recently concluded a trademark infringement and unfair competition litigation between NOK Co., Ltd. (“NOK”) and En Ou Kai (Tianjin) Lubricating Oil Co., Ltd. (“En Ou Kai Tianjin”), Shanghai Torch Lubricating Oil Co., Ltd. (“Torch”). The court recognized NOK’s “NOK” mark as a well-known mark on oil seal goods and held that En Ou Kai Tianjin’s use of “NOK” mark, “En Ou Kai in Chinese” as trade name and the “nokrhy.com” domain name and related publicity activities constituted trademark infringement and unfair competition, together with Torch, the defendants should compensate NOK for economic losses of RMB 1 million (USD139,547).

Disputed Mark

The court found that the “NOK” trademark is a well-known trademark on oil seal goods, and at the same time, it found that “lubricating oil” goods are closely related to “oil seal” goods and constituted similar goods. The use of the registered trademark “NOK” under the name of its affiliated company by En Ou Kai Tianjin infringed upon NOK’s well-known mark “NOK.” The use of the unregistered trademark “NOK” by En Ou Kai Tianjin infringed upon NOK’s “NOK” trademark right. The registered trademark “NOK” En Ou Kai Tianjin has a corresponding relationship with the Chinese character “En Ou Kai,” and the trademark “NOK” has a very high reputation. En Ou Kai Tianjin had the intention to take advantage of the popularity of NOK’s mark, and the behavior of using the name “En Ou Kai in Chinese” would easily cause confusion and constituted unfair competition. The registration and use of the domain name “nokrhy.com” by En Ou Kai Tianjin showed its intention of taking advantage of the popularity of NOK’s mark, which constituted unfair competition. En Ou Kai Tianjin uses Japanese introductions and “NOK Co., Ltd.” and other behaviors in order to take advantage of NOK’s fame, which may easily cause the relevant public to mistakenly believe that by En Ou Kai Tianjin was related to NOK, and constituted false propaganda.

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Recently, BEIJING EAST IP LTD assisted a Chinese sports equipment company to successfully solve the problem that its products sold on Amazon in Japan were complained by competitors for infringing Japanese design patent, and quickly lifted the delisting punishment.

Weekly China Trademark News Updates

June 12, 2023

1. The “Skoda & Design” mark was recognized as well-known in a trademark invalidation against “Wan Si Ke Da in Chinese”

The Beijing High Court recently concluded an administrative trademark invalidation dispute between the the appellant the CNIPA, the appellee Skoda Automobile Co., Ltd. (“Skoda”), and Lijun Zhao, the third party in the original trial. The appeal was dismissed, and the first instance court judgment upheld.

Disputed Mark Reg. No. 28795275	Cited Mark 1 Reg. No. G869977	Cited Mark 2 Reg. No. 4513926

The issue of the case was whether the Disputed Mark’s registration violated Article 13, Paragraph 3 of the 2013 Trademark Law. The Beijing High Court found that the sales invoices, sales certificates, distribution contracts, relevant media reports, national library search reports, relevant advertisements and project cooperation submitted by Skoda from 2007 to 2019 can prove that before the Disputed Mark’s application date, the Cited Mark 2 has been continuously and widely used and publicized on “sedan” related goods and gained a relatively high reputation. It has been recognized as a well-known trademark on “sedan” related goods for many times. Therefore, the comprehensive evidence found in this case can prove that before the Disputed Mark’s application date, the Cited Mark 2 approved to be used on the product “sedan” has been widely known to the relevant public in China through long-term, extensive and continuous publicity and use of Skoda.

The Disputed Mark is composed of “Wan Si Ke Da in Chinese”, and the Cited Mark 2 is composed of the words “SKODA” and design. “Si Ke Da in Chinese” is the Chinese transliteration of “SKODA”. The evidence in this case can prove that “Si Ke Da in Chinese” and “SKODA” have formed a close correspondence after continuous public use by Skoda. “Si Ke Da in Chinese” in the Disputed Mark is the corresponding Chinese transliteration of “SKODA,” the distinctive part of the Cited Mark 2 constituted an imitation of the Cited Mark 2. Although the “cooking appliances and equipment; kitchen range hood” and other goods approved for use under the Disputed Mark were not identical or similar to the Cited Mark’s approved goods for “sedan” according to the CNIPA Classification, there is a wide range of overlap and intersection among the relevant public. Under the circumstances that the Cited Mark 2 has reached a well-known degree in “sedan” goods, and “Si Ke Da in Chinese” and “SKODA” have formed a close corresponding relationship, the Disputed Mark’s use on goods such as “cooking devices and equipment; kitchen range hoods” was likely to cause the relevant public to mistakenly believe that the Disputed Mark has a certain degree of connection with the Cited Mark 2, thereby weakening or diluting the distinctiveness of the Cited Mark 2 or improperly using Its market reputation that may damage Skoda’s interests in its well-known Cited Mark 2. Therefore, the Disputed Mark’s registration violated Article 13, Paragraph 3 of the 2013 Trademark Law and should be declared invalid. The first instance court was correct. The CNIPA’s appeal is dismissed.

2. “Dove in Chinese” was recognized as a well-known mark in an trademark invalidation against “Duo Fen in Chinese”

The Beijing High Court recently concluded an administrative trademark invalidation dispute between the appellant the CNIPA, the appellee Unilever Co., Ltd. (“Unilever”), and Yanlan Huang, the third party in the original trial. The appeal was dismissed and the original judgment was affirmed.

Disputed Mark Reg. No. 14123039	Cited Mark 1 Reg. No. 1280138	Cited Mark 2 Reg. No. 1410281	Cited Mark 3 Reg. No. 4597892

The issue of the case was whether the Disputed Mark’s registration violated Article 13, Paragraph 3 of the 2013 Trademark Law. The Beijing High Court found that Unilever’s publicity evidence submitted in the trademark review proceeding and the first-instance proceedings can prove that before the Disputed Mark’s application date, Unilever’s English brand “Dove” and “Duo Fen in Chinese” has formed a corresponding relationship. The personal care products of “Dove/Duo Fen in Chinese” have been promoted, marketed and sold on a large scale in China for many years, and have won many industry awards and achieved high popularity. The first instance court’s finding that the “Duo Fen in Chinese” mark had become well-known in the goods of “soap, shampoo, and bath lotion” before the Disputed Mark’s application date, met the requirements and legal basis under the 2013 Trademark Law on well-known trademark recognition.

Although “hair dryer, dryer for hair” used by the Disputed Mark is different from “soap, shampoo, and body lotion” of which the Cited Mark was famous for, they are in different classes according to the “CNIPA Classification.” However, based on the level of awareness of the relevant public, “soap, shampoo, and body lotion” and the “hair dryer, dryer for hair” approved and used by the Disputed Mark fell into to the category of personal care and cleaning products. These goods have a certain relationship in use. In view of the fact that the Cited Marks constituted well-known marks on the approved goods of “soap” “shampoo” and “bath lotion” before the Disputed Mark’s application date, and both the Disputed Mark and the Cited Mark are consisted of the Chinese word “Duo Fen in Chinese”, the Disputed Mark constituted a copy or imitation of the Cited Marks. Since the goods under the Disputed Mark were not identical or similar to “soap, shampoo, and body lotion” for which the Cited Marks were famous for, the Disputed Mark was a copy or imitation of the Cited Marks on goods that were different or dissimilar but was enough to make the relevant public to believe that there was certain association between the Disputed Mark and the Cited Marks, which diminished the distinctiveness of the Cited Marks, damaged the Cited Marks’ market reputation, or improperly used the Cited Marks’ market reputation. The Disputed Mark’s registration violated Article 13, Paragraph 3 of the 2013 Trademark Law, and the CNIPA’s grounds for appeal cannot be supported.

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Weekly China Trademark News Updates

July 4, 2023

1. Changes in the pre-docketing system of the Beijing Intellectual Property Court

Recently, the Beijing Intellectual Property Court has reformed the pre-docketing system. Previously, the pre-docketing system was only applicable to foreign, Hong Kong, Macao, and Taiwan entities, as the formality documents of such entities required notarization and legalization. Upon pre-docketing , relevant entities had to submit the notarized and legalized formality documents within three months, and such deadline is extensible during the pandemic, and the longest extension shall not exceed 3 months. After this reform, the scope of application of the pre-docketing system has been expanded to include another 2 situations where pre-docketing can be applied for administrative appeals for trademark refusal. An applicant shall submit a pre-docketing application within the legally stipulated time limit and shall clarify the reasons for the application and submit corresponding evidence or explanations. The court may grant different time limits for the applicant to supplement the formality documents based on the following three situations.

A. The plaintiff is a foreign, Hong Kong, Macao and Taiwan entity: the pre-docketing period is 3 months, beginning from the pre-docketing application date, an extension can be applied for, and the cumulative extension generally does not exceed 3 months;

B. Due to the unstable status of the cited mark (only for administrative appeals for trademark refusal): the pre-docketing period is 12 months, beginning from the pre-docketing application date, no extension is allowed; and

C. The plaintiff involved is a foreign, Hong Kong, Macao, and Taiwan entity and the status of the cited mark is unstable (only for administrative appeals for trademark refusal): the pre-docketing period is 12 months, beginning from the pre-docketing application date, and no extension is allowed.

Among them, situations B and C are only applicable to administrative appeals for trademark refusal. Application for pre-docketing due to the unstable status of the cited mark refers to that the cited mark is already in an unstable status before the sued decision is made, and the final outcome of the cited mark will have substantive impact on the outcome of the case. Under such circumstances, the applicant shall submit preliminary evidence showing the status of the cited mark is unstable along with the filing of the pre-docketing application, and explain the possible impact of the cited mark.

Follow us on LinkedIn! Email: trademark@beijingeastip.com Tel: +86 10 8518 9318 | Fax: +86 10 8518 9338 Address: Suite 1601, Tower E2, Oriental Plaza, 1 East Chang An Ave., Dongcheng Dist., Beijing, 100738, P.R. China

Introduction

In 2018, under the strong leadership of the Central Committee of the Communist Party of China (CCP) with Xi Jinping as the leadership’s core and guided by the underlying precepts of Chinese socialism for the new era, the People’s Courts have applied the principles and implemented instructions decided at the 19th National Congress of the Communist Party of China (“Party Congress”)，the second and third plena of the 19th CCP Central Committee and the Central Political and Legal Work Conference. They studied and applied the ideals of General-Secretary Xi Jinping’s key addresses, and fostered

the “four aspects of consciousness”—consciousness in political correctness, in serving the broader interests, in following the core leadership, and in staying aligned with the central party leadership; the “four matters of confidence”一confidence in the path of Chinese socialism, in the theoretical foundation of the path, in the system of Chinese socialism and in the Chinese culture; and the “two pillars to safeguard”—safeguarding the core status of General Secretary Xi Jinping, and the central and unified leadership of the CCP Central Committee. The People’s Courts adopted a steady and progressive approach to work, keeping in mind their earliest aspirations and the current mission, and discharging adjudicatory responsibilities as conferred by the Constitution and the law. Our judges have been our trusted achievers, as they endeavoured to deliver for the people a sense of equality and justice in every case handled by the judiciary. Reforms in intellectual property adjudication have deepened, and supervision and guidance for adjudicatory operations have increased. And as the courts strive to make the courtroom the principal forum for intellectual property protection, they are also providing effective judicial safeguards, in the process of working tenaciously toward the “two centennial goals”, and toward achieving the China dream of the great rejuvenation of the Chinese nation.

1. Buttressing judicial protection and leveraging
   the judicial process

In a speech delivered at the conference celebrating the 40th anniversary of China’s reform and opening-up, General-Secretary Xi Jinping emphasised the importance of following through the innovation-driven development strategy by creating a more enabling eco-system for innovation and accelerating proprietary innovation of key technologies to forge new socio-economic growth engines., Given China’s strategic thrust of elevating technological innovation capabilities and promoting high-quality economic development, strengthening protection of intellectual property is a natural and necessary option. Last year was marked by soaring case-load, with massive increase in new types of cases and cases of gravity and complexity. Adjudication was thus more challenging. Law enforcement and adjudication is and will always be the people’s courts’ top priority, where civil adjudication is the primary focus of the courts’ adjudication practice, followed by administrative and criminal adjudication, both of which being equally important. The fact-finding process is rigorous, law-application prudent and judicial policies elucidated to ensure lawful and efficient adjudication of intellectual property disputes.

Last year; the People’s Courts accepted a total of 334,951 intellectual property cases, including first instance and second instance cases and applications for extraordinary legal remedy to reopen cases, and concluded 319,651cases (including carried forward cases), representing a respective year-on-year increase of 41.19% and 41.64%.

• More effective adjudication of civil disputes to ensure sustained and sound socio-economic development

Throughout the past year; the People’s Courts have directed efforts to meeting the new goals and new demands on the intellectual property judicial protection under the comprehensive deepening of reform agenda, delivered fair justice, and strengthened civil adjudication to better protect intellectual property rights and the full interests of the rights holders.

In 2018, the local people’s courts accepted 283,414 and concluded 273,945 civil intellectual property cases of first instance, and the respective year-on-year increases were 40.97% and 41.99%. Among the newly accepted cases, 21,699 were patent cases, an increase of 35.53% from last year; 51,998 trademark cases, a 37.03% increase; 195,408 copyright cases, a 42,36% increase; 2,680 technology contract-related cases, a 27.74% increase; 4,146 unfair competition cases (including 66 monopoly cases), a 63.04% increase. Other intellectual property disputes constitute 7,483 cases, 44.60% increase from last year.

The local people’s courts accepted 27,621 (26.60% year-on-year increase) and concluded 26,288 (28.08% year-on-year increase) civil intellectual property cases of second instance. For extraordinary legal remedies to reopen cases terminated by a final judgement (zaishen), the local people’s courts accepted 223 cases and concluded 221 cases, representing a increase of 189.61% and 301.82% respectively.

In the same year; the Supreme People’s Court accepted 913 new civil intellectual property dispute cases (81.51% year-on-year increase) and concluded 859 (74.24% year-on-year increase). The number of newly accepted and concluded second instance cases were 24 and 21, and the number of newly accepted and concluded reopened cases were 798 and 759, representing year-on-year increases of 76.55% and 71.72% respectively; among the certiorari (tishen) cases, 77 were newly accepted cases and 65 concluded cases.

High profile civil disputes involving intellectual property heard and concluded by the people’s courts during the year include:

Wuxi Guowei Ceramic Electrical Appliances Co., Ltd (plaintiff/ appellant/ petitioner), Jiang Guoping (plaintiff/appellant/petitioner) vs. Changshu Linzhi Electrothermal Devices Co., Ltd (defendant/ appellant/petitionee), Suning.com Co., Ltd (defendant/appellee/

petitionee) involving a dispute on utility patent infringement; Guangzhou Compass Conference and Exhibition Service Co., Ltd (plaintiff/appellant,) vs. Fast Retailing Trading Co., Ltd. (UNIQLO) (defendant/ appellant) involving trademark infringement dispute; Beijing Baidu Network Technology Co., Ltd (defendant, appellant) vs. Beijing Sogou Technology Development Co., Ltd (plaintiff, appellee) involving an invention patent dispute; Beijing Microvision Horizon Technology Co., Ltd (plaintiff) vs. Baidu Online Network Technology (Beijing) Co., Ltd (defendant) et al. involving infringement of the right of dissemination via the information network; Beijing Dehong Seed Industry Co., Ltd (defendant/appellant/petitioner) and Henan Academy of Agricultural Sciences (defendant/appellant/petitioner) vs. Henan Goldoctor Seed Co.,Ltd (plaintiff/appellee/petitionee) involving infringement in new plant variety; Canon Inc. (plaintiff) vs. Shanghai MUMING Electronic Technology Co., Ltd (defendant) involving an invention patent dispute; 3M Company (plaintiff/ appellee) vs. Shanghai Yuanjia Plastic Co., Ltd (defendant/appellee) and Shanghai Yushuaiwei Industrial Co., Ltd (defendant/appellee) et al. involving invention patent infringement; Activision Publishing, Inc. (plaintiff/appellant) vs. Huaxia Film Distribution Co., Ltd (defendant/ appellant) involving infringements of copyright and trademark, unauthorised use of the unique names of well-known goods, and false advertising; and Crosplus Home Furnishings (Shanghai) Co., Ltd (plaintiff/appellant) vs. Beijing Zhongrong Hengsheng Wood Co., Ltd et al (defendant/appellee) involving copyright infringement.

• More effective adjudication of administrative disputes to promote and supervise law enforcement by administrative agencies with regard to intellectual property

The newly amended Administrative Litigation Law and its judicial interpretations were rigorously applied during the past year. By stepping-up judicial review for cases involving the granting and validation of intellectual property rights, and exercising stronger oversight to support the administrative authorities to administer according to law, administrative law enforcement is further regulated.

In 2018, the local people’s courts accepted 13,545 administrative intellectual property cases of first instance, 53.57% more than last year. Specifically, 1,536 were patent cases (76.15% year-on-year increase), 11,992 were trademark cases (51.20% year-on-year increase) and 17 were copyright cases (no change from last year). 9,786 first instance cases were concluded, 53.15% more than last year. 3,565 administrative intellectual property cases of second instance were accepted by the local people’s courts (304.20% year- on-year increase), and the number of concluded cases totalled 3,217 (180.72% year-on-year increase), of which, the courts upheld the decisions of 2,708 cases, amended the first instance judgement for 446 cases, remanded 9 cases for retrial, dismissed 45 cases, overruled the decision in 1 case, and disposed of 8 cases through other methods.

The Supreme People’s Court accepted 642 and concluded 581 administrative intellectual property cases, representing an increase of 64.19% and 41.02% respectively. Specifically, 537 cases were reopened (55.20% year-on-year increase) and 484 concluded (32.24% year-on-year increase); 99 certiorari cases were newly accepted during the year and 89 concluded.

High profile administrative disputes involving intellectual property heard and concluded by the people’s courts during the year include:

Christian Dior Perfumes LLC (plaintiff/ appellant/ petitioner) us. Trademark Review and Adjudication Board (TRAB) of the State Administration for Industry and Commerce (SAIC) (defendant/ appellee/ petitionee) involving the rejection of a trademark application; Shenzhen QVOD Technology Co,, Ltd (plaintiff/ appellant) vs, Shenzhen Market Supervision Administration (defendant/ appellee) and Shenzhen Tencent Computer System Co,, Ltd (third party in original instance) involving a dispute on copyright administration penalty; E Italian (Langfang) Electronic Engineering Co,, Ltd (petitioner/ third party in original instance) vs, Wang He (plaintiff/appellant/ petitionee), Yao Peng (plaintiff/ appellant/ petitionee) and Patent Re­

examination Board (PRB) of the State Intellectual Property Office of the PRC (defendant/ appellee/ petitionee) involving an administrative dispute over the invalidation of an invention patent; Guangzhou Sealy Electronic Technology Co., Ltd (petitioner/ third party in original instance), Jinan Qianbei Information Technology Co, Ltd (petitioner/ third party in original instance) vs. Poker City Network Technology (Shanghai) Co., Ltd (plaintiff/ appellant/ petitionee) and Trademark Appeals Board of the State Administration of Industry and Commerce (defendant/appellee) involving an administrative dispute on trademark opposition review; Andis Company (plaintiff/ appellant/ petitioner) vs. Trademark Review and Adjudication Board (TRAB) of the State Administration for Industry and Commerce (defendant/ appellee/ petitionee) and Ningbo Brofa Hairdressing Appliance Co.,Ltd (defendant/appellee/petitionee) involving an administrative dispute on trademark opposition review; Trademark Office of the State Administration for Industry and Commerce (defendant/ appellant) vs. Anhui Huayuan Pharmaceutical Co., Ltd (plaintiff/ appellee) involving a trademark administrative dispute; Trademark Office of the State Administration for Industry and Commerce (defendant/ appellant) vs. Shenzhen Tencent Computer System Co., Ltd (plaintiff/ appellee) involving an administrative dispute over the review of a rejected trademark application.

• More effective adjudication of criminal offences to sanction intellectual property infringement

The People’s Courts exercised their official powers of criminal adjudication as a powerful lever to deter criminal infringement of intellectual property rights and to maintain a positive legal environment that protects intellectual property.

In 2018, the local people’s courts accepted 4,319 intellectual property-related criminal cases of first instance, 19.28% higher than last year. Among the accepted cases, 4,117 were related to criminal infringement of registered trademarks (20.20% year-on- year increase), and 156 were criminal copyright infringement (7.69% year-on-year decrease).

The local peoples’ courts concluded 4,064 intellectual property- related criminal cases of first instance in total, 11.59% higher than last year. 1,434 cases involved manufacturing and selling counterfeit or substandard goods, 30.36% higher than last year. Of the concluded first instance cases, 1,852 cases were related to the counterfeiting of registered trademarks, 9.78% higher than last year; 1,724 cases involved selling goods bearing counterfeit registered trademarks, 15.39% higher than last year; 305 were cases of illegal manufacturing or sale of goods bearing illegally produced registered trademarks, 17.31% higher than last year; 2 cases involved counterfeiting patents;

136 cases were related to the criminal infringement of copyright, 20% lower than last year; 6 cases involved selling infringing reproductions, 50% higher than last year; and 39 cases involved

① crimes of trade secret infringement, 50% higher than last year. a

For intellectual property-related criminal cases of second instance, the local people’s courts accepted 683 cases, 28.17% higher than last year; 668 cases were concluded, representing an increase of 23.70%.

High profile criminal cases involving intellectual property heard and concluded by the people’s courts during the year include:

Li Gongzhi and Wu Qin’s illegal production of registered marks; Jushi Online (Beijing) Technology Co., Ltd and Huang Ming, who were involved in a copyright infringement crime.

In 2018, intellectual property protection by the judiciary exhibits five

key features.

Considerable increase in case numbers： In 2018, the number of civil, administrative and criminal intellectual property cases newly accepted by the People’s Courts was 334,951, 97,709 cases and

41.19% more than last year. First instance administrative and civil

a The above publicised figures exclude the total number of first-instance intellectual property-related criminal cases, the number of cases involving the manufacturing and sale of counterfeit and substandard goods, the number of cases relating to illegal business operations involving infringement of intellectual property rights, and the number of other intellectual property infringement cases.

disputes increased substantially, by 53.57% and 40.97% respectively. Most notably, Guangdong Province’s first instance administrative cases went up by 77.78% year-on-year; and Beijing accepted 52,463 new cases, 47.40% more than last year. Beijing, Shanghai, Jiangsu, Zhejiang and Guangdong continued to operate under a heavy case­load, having accepted 185,337 civil cases of first instance and accounting for 65.39% of the national total for the same category, with Shanghai increasing by 49.77% and Jiangsu Province by 45.48% year-on-year. Zhejiang Province’s new first instance patent cases grew by 79.53%.

Many other provinces also witnessed an explosive year-on-year increase. For example, the case-load for Gansu Province grew by 290%, Guizhou Province by 157.22%, Qinghai Province by 155%, Shaanxi Province by 89.4%, Tianjin Municipality by 82.3%, Sichuan by 67.57%, Guangxi autonomous region by 40.05%, and Hainan Province by 156.16%. Also, Hebei Province’s newly accepted first instance cases grew by 156.44% and Heilongjiang Province’s newly accepted first instance civil cases increased by 130.71%. Shanxi Province’s newly accepted first instance cases grew by 65.6%, of which cases involving copyright disputes increased by 199%, and second instance cases increased by 155%

Significantly greater case impact: By hearing different types of cases fairly and efficiently, a digest of cases with significant impact has been created, and intellectual property adjudication by the People’s Courts have received increasing attention from home and abroad. For example, for Christian Dior Perfumes LLC vs. Trademark Review and Adjudication Board (TRAB) under the State Administration for Industry and Commerce (SAIC), an administrative dispute concerning the refusal of TRAB to accept a trademark application by the plaintiff, the Supreme People’s Court conducted open hearing and pronounced the verdict immediately after submissions. The outcome of the case reflects the principle of equal protection for local and foreign rightsholders, and features prominently the value orientation of complying with international conventions and strengthening international cooperation. Through the case, the court also reinforces the demand for due administrative processes and embodies the values of prompt relief and comprehensive protection. This is of exemplary significance in terms of making known China’s accomplishments in intellectual property protection, and for making Chinese courts a “preferred forum” for resolving international disputes.

The courts have also adjudicated disputes involving trademark disputes, where famous companies sought to protect their brand interests and market share, and copyright disputes involving the

transmission of cinematograph films and television works through the Internet. These cases involved large claims and attracted wide social attention. For example, in Zhejiang Geely Holding Group Co Ltd us, WM Motor heard by the Shanghai High People’s Court, the claim was CNY 2.1 billion; in Shenzhen QVOD Technology Co,, Ltd us, Shenzhen Market Supervision Administration, the Guangdong High People’s Court ordered an “astronomical fine” of CNY 260 million, which received much public attention. Shanghai Pudong Court heard the Liu Santian v, Zhou Meisen copyright infringement case, which was also a highly publicised case involving In the Name of the People (Renmin de Mingyi) a renowned anti-corruption TV drama.

Adjudication becoming increasingly challenging: As China presses ahead with the development of a market economy and the implementation of the innovation-driven development strategy, technology-based disputes involving finding of complex technology facts or other new types of disputes are increasingly emerging, and new adjudication challenges for intellectual property disputes confront the courts. For example, the Beijing courts heard and concluded the case of Xi’an Xidian Jietong Wireless Network Communication Co,, Ltd vs, Sony Mobile Communications (China) involving standard essential patents, Jaguar Land Rover Automotive PLC vs, Jiangling Motors Group Co,, Ltd, an administrative case involving the invalidation of a design patent, and the first administrative lawsuit involving the rejected application of “DiDiDiDiDiDi” sound trademark.

The Shanghai Intellectual Property Court concluded the case of Wuhan Han yang Guangming us, Shanghai Hankook Tire Sales, where the defendant is accused of entering into vertical monopoly agreements and of abusing its market dominance. This was the first vertical monopoly dispute that the court has heard. The same court also adjudicated several cases involving genetic technology or genetic data, such as the DNA Genotek Inc, us, Chinese National Human Genome Center (Shanghai), an invention patent dispute involving the infringement of a patented genetic testing technology for human genes; Huashan Hospital (a teaching hospital affiliated to Fudan University) us, Jonathan Flint, a case of infringement of the exclusive ownership of information of human genetic resources, which involves the attribution of ownership of human genetic data. The Shanghai Pudong Court also concluded Youku Information Technology (Beijing) Co,, Ltd us, Shanghai Qianshan Network Technology Deuelopment Co,, Ltd, which involved the issuance of a cease and desist order before an unfair competition trial, targeting at the defendant’s video aggregation platform.

Adjudication quality progressively improved: First, significant increase in the number of concluded cases. On a year-on-year basis,

the percentage of cases concluded by the Hainan courts in 2018 grew by 161.76%; first instance cases concluded by the Hebei courts was 2,608, representing a 156.44% increase; in Hunan, 9,545 cases were concluded, 69.08% more than last year. In Beijing, 49,596 first instance cases were concluded, 56% more than last year; for Tianjin, the figure was 4.410, with a year-on-year increase of 68.3%; for Sichuan Province, 7,331 cases were concluded, representing an increase of 67.34%.

Second, the percentage of cases accepting the courts’ decision as final continued to be encouraging. In Shanghai, with significant increase in new acceptances and disposals, 94.13% of the cases accepted the first instance decision. In Xinjiang with zero petition and complaints through the Xinfang (“Letters and Visits”)channel.

Third, significant increase in rate of post-mediation discontinuance. Ningxia courts achieved a post-mediation discontinuance rate of 92%. In Liaoning, 74.87% of the cases were discontinued after mediation; the figure for Jiangxi was 69.81%. In Shandong, 68.7% of first instance intellectual property cases were discontinued after mediation; Heilongjiang’s figure was 66.2%. In Anhui Province, post­mediation discontinuance rate was 61.86%. The high post-mediation discontinuance rate and high rate of acceptance of the courts’ decision have generated good social outcomes.

Protection continued to strengthen： The People’s Courts have continued to award damages based on market value to increase the severity of punishment for intellectual property infringement. This will also raise the cost of breaching the law and keep the damages quantum on par with the market value of intellectual property to effectively protect the interests of rightsholders. In an unfair competition case involving the “Laoban ‘老板brand of electrical appliances, the Zhejiang High People’s Court which heard the appeal referred to the sales figures submitted as evidence in another case, the selling prices showed in the infringing website and the operating profits indicated in the annual financial statements of the rightsholder’s listed company. The court determined that the gains from infringement had exceeded the rightsholder’s claim of damages, and went on to award the entire claim of CNY 10 million, which the demonstrated the value orientation of stepping up intellectual property protection. While civil adjudication is the predominant means of resolving intellectual property disputes, the People’s courts have continued to focus on using criminal sanctions as deterrence. In the case of He Wei et al. heard by the Hubei High People’s Court, where six people were involved in counterfeiting registered trademarks and selling goods with counterfeit marks and where the criminal proceeds was almost CNY 16 million, the Ministry of Public Security gave the case priority focus to supervising the

investigation phase. The case, which attracted much public attention, was difficult in the application of law. The court eventually sentenced He Wei, the principal offender, to seven years in prison on the charge of counterfeiting registered trademarks and three years in prison on the charge of selling goods with a counterfeit mark, thus, totalling 10 years, and a fine of CNY 3.71 million. The punishment meted out to the offender clearly demonstrates the capabilities and level of criminal protection for intellectual property.

1. Enhancing the robustness of the adjudication system and
   pursuing innovative approaches to judicial reform

2018 marks the first year when we put into action the values and precepts of the 19th Party Congress and the 40th year of China’s reform and opening-up. Increasingly, intellectual property is becoming the most important intangible asset in the world, a critical component of national interests, and an essential tool when great powers collide. The world is undergoing a period of change, with major development, major transformation and major adjustments, and the international regime governing intellectual property rights is also progressing and evolving. Determined to change and innovate, the People’s Courts are pushing ahead with reforms of the intellectual property judicial regime to recalibrate systems and mechanisms and rebuild capacities for the modern age.

• Establishing an Intellectual Property Tribunal under the Supreme People’s Court

Creating an intellectual property tribunal within the Supreme People’s Court is part of the efforts to developing a sound and China­specific judicial protection regime for intellectual property. In February 2018, the Central Commission for Deepening Overall Reform decided that the setting up of an intellectual property tribunal would a key reform focus for 2018. The Supreme People’s Court’s Party organisation regarded the development of the intellectual property tribunal as a key priority, and Chief Justice Zhou Qing chaired a special meeting to study the feasibility of the project, demanding that the intellectual property tribunal meet the criteria being of “high starting point, high standard, high level and international in nature”. On 26 October; the Sixth Meeting of the Standing Committee of the 13th National People’s Congress approved the “Decision of the National People’s Congress Standing Committee on Several Issues Concerning Litigation Procedures for Patent and Other Intellectual Property Cases”. On 3 December 2018, at the 1756th meeting of the Supreme People’s Court Judicial Committee, the “Supreme People’s Court’s Provisions on Several Issues Concerning the Intellectual Property Tribunal” was adopted. The provisions clarified issues such

as the scope of cases to be heard by the tribunal and the alignment of procedures. Being a permanent adjudication entity that is part of the Supreme People’s Court, the intellectual property tribunal is an appellate-level tribunal having centralise jurisdiction over appeals of patent infringement and antitrust or other technology-related intellectual property disputes. Within a short time, the tribunal has accomplished a suite of tasks, including site selection, recruitment, upgrading of case-operations system and back-end support, and officially began accepting cases on 1 January 2019.

Establishing the intellectual property tribunal is an important decision and resource deployment that stems from the strategic thinking of the CCP Central Committee with Xi Jinping as the core leader, which is to develop China into a global powerhouse in intellectual property and in science and technology. It is also an important reform measure for our comprehensive deepening of judicial reform and promoting fair justice, an important symbol of the intensification of reform and opening-up in the new era, an important outcome of 40 years of continued reform and opening- up, and an important institutional innovation that provides rigorous protection for intellectual property, that serves the innovation-driven development strategy, and that helps cultivate a world-class business environment. Thus, the intellectual property tribunal is of enormous significance to China’s rule-of-law development and its history of advancing the cause of people’s justice.

• Progressive deepening of the structural and operational development of intellectual property courts

The intellectual property courts have followed through the National People’s Congress Standing Committee’s deliberations and opinions on Chief Justice Zhou Qiang’s report on the work of the intellectual property courts. Increased guidance was provided for the Beijing, Shanghai and Guangzhou intellectual property courts to elevate the standard of their operations. The three courts have made solid and smooth progress, and have achieved significant outcomes. By hearing high profile cases that draw considerable public attention, the courts establish the rules for deciding cases and promote unification of adjudication criteria, providing essential guidance for development of the adjudication sector. The courts’ efforts at significantly increasing compensation awards and encouraging litigation integrity have won them worthy praises from the society at large.

Having implemented a host of measures, the intellectual property courts are also the ground-breakers and trail-blazers of judicial reform: in terms of human resource management, they put in place the judicial accountability system, the professional judges headcount system, and a flat management structure; in terms of mode of adjudication, they developed a collaborative judge-led model with

categorised personnel, and clear accountability and responsibilities; in terms of de-bureaucratisation, they attempted hearing conducted directly by the adjudication committee, and having presidents and chief judges hear cases on a regular basis; in terms of case operations, they explored the case diversion system to separate simple cases from complex ones, and reform of written judgements, and established the technical investigation system to accumulate replicable and scalable experiences. The intellectual property courts also organised symposiums focusing on the development of a system for intellectual property courts, reviewed the lessons and experiences of the intellectual property courts and tribunals, and studied the ways to improve on the system.

• Improving the organisational development of specialised intellectual property adjudication institutions with cross-regional jurisdiction

To carry out the national intellectual property strategy, optimise intellectual property case management, and integrate intellectual property adjudication resources, the Supreme People’s Court approved in 2017 the setting up specialised intellectual property adjudication institutions with cross-regional jurisdiction in 11 cities, including Nanjing and Suzhou. In 2018, it approved the establishment of intellectual property tribunals in another 8 cities, namely Tianjin,

Zhengzhou, Changsha, Xi’an, Nanchang, Changchun, Lanzhou and Urumqi. Except for Lanzhou and Urumqi, which will commence operations in 2019, the other 6 intellectual property tribunals have commenced operations. Establishing these tribunals are important for unifying the yardsticks for decision-making, improve adjudication quality, and maintaining market order. They are also instrumental in terms of protecting the lawful interests of market players and in implementing China’s innovation-driven development strategy. More effort will be committed to provide professional guidance for cases handled by the specialised intellectual property adjudication entities with cross-regional jurisdiction, and the resource allocation for intellectual property adjudication will be continually optimised to improve on the overall jurisdiction structure.

• Continuing with “three-in-one” reform

In 2018, the Supreme People’s Court buttressed the results of the “three-in-one” reform by performing field studies in multiple provinces and cities. It also convened in Zhengzhou and Chongqing national symposiums for selected courts on topics relating to advancing the “three-in-one” initiative and investigative studies of intellectual property criminal adjudication. Participants at the symposiums carried out in-depth study of the problems in intellectual property criminal adjudication, and completed the “Research Report on Promoting Nation-wide ‘Three-in-One’ Adjudication of Intellectual Property Cases” and “Nation-wide Research Report on Criminal Adjudication in Chinese Courts”.

The above reports emphasised the need for the intellectual property tribunals of the different levels of courts to fully comprehend the inherent nature of the “three-in-one” mechanism for intellectual property adjudication, that the scope of intellectual property protection stems from a single intellectual property right, and that civil adjudication constitutes the core of the “three-in-one” model and the basis of administrative and criminal adjudication. In intellectual property disputes, civil adjudication determines the jurisdiction structure of “three-in-one” adjudication, in that the jurisdiction of civil cases must be the focal point, around which jurisdiction for administrative and criminal disputes aggregate. The reform of the “three-in-one” mechanism is the chokepoint but also the opening for the People’s Courts to become the main channel for protecting intellectual property in the new era. Therefore, full effort should be devoted to the implementing the “three-in-one” model, as decided by the Central Committee and as arranged by the Supreme People’s Court.

Currently, 17 high courts, 113 intermediate courts and 129 basic- level courts have implemented the “three-in-one” model. At the same

time, the Supreme People’s Court continues to give important priority to fighting infringement and counterfeiting to protect intellectual properties, and has been diligent and committed to this priority, having collaborated with the various authorities to follow through the decisions and arrangement of the CCP Central Committee and the State Council. Led by the office of the National Leading Group on the Fight against IPR Infringement and Counterfeiting, the Supreme People’s Court has participated in the drafting of various documents, compiling materials, jointly endorsing documents, supervising case operations and on-site appraisal. Its excellent performance of the various tasks has won it the accolade of “Outstanding Group Award for Combating Infringement and Counterfeiting”.

The Hunan courts developed comprehensive intellectual property protection regime comprising civil protection, administrative oversight on law enforcement and criminal sanctions. In the appeal by the Tianyuan People’s Procuratorate of Zhuzhou City, where defendants Xiang Fangxiang and Shangguan Zongshang were accused of illegally manufacturing and selling illegally produced registered trademarks and marks, the Hunan Zhuzhou Intermediate People’s Court amended the principal penalty from suspended prison sentence to prison sentence to effectively deter intellectual property crimes.

At the national symposium on fighting infringement and counterfeiting, the Shanghai Pudong Court shared its progress in driving the “three-in-one” adjudication model and was duly recognised. In the “three-in-one” reform initiative for intellectual property adjudication which all Chinese courts are pushing ahead, it is the “replicable and scalable” “Pudong experience” for general emulation.

• Unifying adjudication criteria and strengthening
  judicial supervision and guidance

Having unified adjudication criteria and ensuring a uniform approach to law-application for consistency and predictability is necessary for developing the intellectual property legal regime. In 2018, the People’s Courts have devoted much effort to unifying adjudication criteria and supervision of adjudicatory operations, and were able to correctly discern and manage the peculiarities and nature of intellectual property adjudication and align adjudication operations between the different levels of courts to improve adjudication quality and efficiency.

• Convening national adjudication work meetings to review and organise all aspects of the current operations

In July 2018, the Supreme People’s Court convened in Qingdao its 4th National Work Meeting on Intellectual Property Adjudication, for which Chief Justice Zhou Qiang gave important instructions. At the meeting, groups and individuals with outstanding performance were recognised and commended. Ten representatives from different courts shared their experiences. Vice President Tao Kaiyuan reviewed in depth the courts’ work for the past five years and the current situation and tasks, and organised intellectual property adjudication work for the near future. The meeting established the “three-step” development goal for intellectual property adjudication and specified the direction for the next five years. It also set forth nine major areas of increased emphasis, which are: establishing the courts as the key dispute resolution channel for intellectual property disputes to elevate the courts’ authority in the intellectual property legal regime; strict protection to increase the intellectual property rightsholders’ sense of gain; encouraging innovation to cultivate an innovative legal environment; maintaining competition to preserve an effective and healthy competition mechanism; values-driven to promote the core values of socialism; international perspective to continue elevating the international impact of judicial protection of intellectual property; reform and innovation to continue to modernise the intellectual

property adjudication system and adjudication capabilities; supervision and guidance to improve the quality and efficiency of intellectual property adjudication; capacity-building to develop a team of world-class judges. The principles established at the meeting were pertinently instructive for intellectual property adjudication in China for the near future.

• Greater focus on studying and publishing judicial interpretations

The Supreme People’s Court issued the “Provisions on Several Issues Concerning the Intellectual Property Tribunal” to expound details such as the nature of the organisation, scope of case acceptance, litigation procedures, working mechanism of adjudicatory powers and linking of procedures. Another judicial interpretation issued was the “Provisions on Several Issues Concerning the Application of Law in Examining Cases Involving Taking Preservation Measures against Infringing Acts in Intellectual Property Disputes’： which provided clarity on matters such as the applicants of preservation cases, review procedure, necessity of preservation, jurisdiction relating to the determination of erroneous applications and initiation of compensation action to redress an erroneous application, removal of preservation measures, application charges. It also drafted a judicial interpretation concerning the participation of technical investigators

in litigation, which was submitted to the adjudication committee for deliberation. Judicial interpretations concerning adjudication of administrative cases relating to the granting and validation of patent rights are continuously studied, and new problems that emerged are widely discussed.

By working on and publishing the above judicial interpretations, the Supreme People’s Court has put into effect the “Opinions on Several Issues concerning Strengthening Reform and Innovation in Intellectual Property Adjudication” issued by the CPC Central Committee, to ensure that the “Pilot Programme on Establishing Intellectual Property Tribunal” approved by the Central Committee and the National People’s Congress Standing Committee’s “Decision on Several Issues Concerning the Litigation Procedures in Patent and Other Intellectual Property Cases” are implemented and the desired results achieved, thereby helping to enrich and further develop the China-specific intellectual property litigation system. These efforts are critical for increasing the robustness of a specialised intellectual property adjudication system, elevating the quality and efficiency of adjudication, unifying adjudication criteria, and serving China’s innovation-driven development strategy and intellectual property strategy. The Supreme Court has also worked on the drafting of judicial interpretations concerning the application of the unfair competition law and protection of trade secrets to address

international concerns. Two legal seminars on the judicial protection of trade secrets were convened separately in Nanjing and Shanghai to clarify the legal thinking with regard to adjudicating trade secrets disputes, so as to prepare for the eventual promulgation of the judicial interpretation on trade secrets.

• Enhancing judicial policies to accomplish tasks assigned by the National People’s Congress

The Supreme People’s Court issued the “Notice on Strengthening Judicial Protection of ‘Red Classics’ and the Lawful Rights of Heroes and Martyrs to Promote the Core Values of Socialism”； drafted the “Letter from the Supreme Court’s General Office on Incorporating Content Relating to ‘Strengthening Judicial Protection of Red Classics and the Lawful Rights of Heroes and Martyrs to Promote the Core Values of Socialism* upon the Amendment of the Copyright Law” and the “Report on Matters Relating to the Strengthening Judicial Protection of Red Classics” to underline the importance of protecting the legacy of red classics and the lawful rights of heroes and martyrs according to law. The above documents also advocate the importance of paying attention to taste, style and responsibility, with the aim of educating and guiding the general public, especially the youth, to consciously resist being “lowly, crude and tawdry”； warn against historical nihilism, and regulate broadcasting activities to protect

social and public interests.

The Supreme People’s Court also submitted the “Report on the Study and Implementation of the National People’s Congress Standing Committee’s Report on the Audit of Copyright Law Enforcement and its Deliberations and Opinions” as assigned by the National People’s Congress’ law enforcement audit. Based on the problems as identified from the law enforcement audit and the judicial practice, the report proposed practical corrective measures and opinions pertaining to matters such as substantive reduction of the cost of defending rights, reducing the long litigation period, increasing the amount of infringement damages.

• Actively participating in the revision, compilation research and drafting of laws

The courts have been active participants of in revision of laws and regulations, such as the Civil Code, Patent Law, Copyright Law, Law Against Unfair Competition, Trademark Law, and the Regulations for the Implementation of the Trademark Law and Regulations on the Protection of New Plants Varieties. Judicial policies developed and experiences accumulated from adjudication practice were promptly and specifically studied and assessed, and recommendations for amendments proposed.

A national symposium for selected courts was convened in Beijing

to discuss the amendment of the Copyright Law. Extensive and in­depth discussion were carried out, focusing on the classification of works, the rights included in copyright, copyright agreements, collective management, provisions on related rights, legal liability and coordination and alignment with international treaties and other laws. After thorough discussion, the “Supreme People’s Court’s Opinions on the Amendments to the Copyright Law” was submitted to the Ministry of Justice, and the document was highly commended, and the opinions contained within were well-received.

• Strengthening adjudication research and case guidance

Thematic forums on current and hot intellectual property issues. In November 2018, the Supreme People’s Court convened in Hangzhou, a symposium to solicit opinions and recommendations for the “Several Provisions on Evidence for Civil Procedure for Intellectual Property Disputes (Draft)”. The meeting participants conducted an investigative study on judicial interpretation of evidence in intellectual property civil litigation and studied the use of special procedure in intellectual property litigation.

Several other research studies were also initiated. The research study on malicious trademark registration was a response to the problem that has attracted international attention and serious social displeasure. Another research was conducted jointly with the State

Administration for Market Regulation (SAMR) Trademark Office to provide recommendations on the possible measures to deal with trademark squatting. To develop a better civil justice system to deal with monopoly matters, a research study on civil procedural issues relating to anti-monopoly disputes was initiated, so that the Anti-Monopoly Law could be better leveraged to curb monopolistic behaviour expeditiously. To commemorate the 10th year of promulgation of the Anti-Monopoly Law, the Supreme People’s Court organised a symposium to review the experiences relating to the adjudication of civil cases involving monopoly disputes, so as to pave the way for the revision of the Anti-Monopoly Law and the drafting of judicial interpretations, and that a fair and effective mechanism that conduces to market competition can be maintained.

Other areas of research include the study of the conflicts between industrial design and copyright, for which seminars were held in Beijing and Kunming, and the “Study Report on the Conflicts between Industrial Design and Copyright” was drafted to elucidate the similarities and differences and the conflict of rights, and from which practical adjudication guiding opinions could be generated. The study on the judicial protection of outcomes from innovative business models was another interesting attempt. On April 2018, the Supreme People’s Court’s Intellectual Property Judicial Protection Research Centre convened an assessment conference to deliberate and evaluate

the outcomes of the “Study on the Judicial Protection of the Outcomes of Innovative Business Models”. Leaders from the relevant agencies and experts and academics attended the conference to deliberate and assess the research project’s outcomes, and provided feedback, adjustments and revisions for the report.

The local courts also actively carried out research studies in different areas. On 20 April 2018, the Beijing High People’s Court issued the “Beijing High People’s Court Bench Book on Adjudicating Copyright Infringement Cases’： which specifically sets forth that when adjudicating copyright cases, judges should adhere to the basic adjudication principles of providing greater protection, of encouraging creation, of promoting dissemination and of balancing interests. By summing up the thinking behind the hearing of cases involving copyright infringement, the bench book provides useful guidance for the hearing of internet-related copyright disputes by the Beijing Internet Court and the adjudication of copyright disputes by other Beijing courts. The bench book is a valuable contribution to advancing development and innovation in Beijing’s cultural sector. Again, on 20 September 2018, the court published the “Opinions on Providing Judicial Protection for Strengthening the Development of a National Technological Innovation Centre in Beijing”： which sets forth adjudication rules and requirements for disputes involving innovation-based technologies and relevant cases, and lays out specific measures for overcoming obstacles stemming from institutions and mechanisms that hamper development of intellectual property adjudication.

In April 2018, the Guangdong High People’s Court published the “Operational Guidelines on Adjudicating Standard Essential Patent Disputes’； which looked in to the adjudication thinking and methodology behind disputes involving standard essential patents. “China Intellectual Property (English Edition)’ and world-renowned specialised intellectual property media reported on the publication in great detail, providing penetrating interpretations of the Guidelines. It was encouraging to see Qualcomm Technologies and Huawei Technologies Co. Ltd selecting Guangdong Province as the choice jurisdiction for standard essential patent disputes.

The Shanghai High People’s Court issued the “Several Opinions on Strengthening Judicial Protection of Intellectual Property’ to implement measures that make production of evidence convenient for the parties, that increase the amount of compensation, and that shorten the adjudication cycle, which was highly regarded by the society at large.

The Sichuan High People’s Court published the “Guidelines on Adjudicating Disputes Relating to the Infringement of the Right of Information Transmission in Networks’ and the “Bench Book on Adjudicating Trademark Infringement Disputes” unify the adjudication criteria for all courts in the province.

To address the inconsistent standards used in determining electronic evidence submitted during intellectual property litigation, the Zhejiang courts developed a manual entitled “Examination and Determination of Electronic Evidence Relating to Intellectual Property Rights”.

The Shandong High People’s Court was highly productive, having completed the Supreme People’s Court’s major research project entitled “Research on the Intellectual Property Protection of New Forms of Innovation”，the “Research on Strengthening Judicial Protection of Intellectual Property。the “Research Report on the Anti­Monopoly Law of the People’s Republic of China’” and the research study on “Standard of Proof for Trademark Infringement Cases”

The Tianjin High People’s Court completed the Supreme People’s Court’s major research project entitled “Research on the Judicial Protection Strategy of Intellectual Property in China” and the judicial practice-based thematic research project entitled “Case Study on the Legal Regulation of New Types of Unfair Competition on the Internet”.

Leveraging the role of research bases and bolstering case guidance and case studies: After years of searching and learning, the People’s Courts have developed a unique “four-in-one” intellectual property case guidance system underpinned by typical cases, guiding cases, annual case reports and case-guidance research bases.

In April 2018, Tao Kaiyuan, Vice President of the Supreme People’s Court convened and chaired the Work Symposium of the Supreme People’s Court’s Intellectual Property Judicial Protection Research Centre cum Seminar on Theories of Intellectual Property Judicial Protection. In his speech, Justice Tao stressed the need to unify thinking and forge synergies in promoting the continued innovation and practical application of intellectual property theories and research methods, research perspectives and outcomes. Representatives from different theoretical study bases and research bases spoke at the symposium. This enabled the research centre to contribute to theoretical research in the judicial protection of intellectual property in the new era, and to leverage its theoretical research capabilities to contribute advice and suggestions.

The Supreme People’s Court reviewed the classic cases relating to the judicial protection of intellectual property, and compiled and published the Chinese and English versions of the “Collection of Classic Cases on the Judicial Protection of Intellectual Property in China” to make known the court’s achievements. The work has attracted broad interest. Also publishing soon is the “Supreme People’s Court Guiding Cases for Intellectual Property Adjudication

(Volume 10)”. Other publications include the “Analysis of New Challenges in Intellectual Property Judicial Practice: Hot Issues on Patents, Trademarks and Copyright。”Analysis of New Challenges in Intellectual Property Judicial Practice: Intellectual Property Judicial Protection and Industrial Development, “Interpretations and Applications of Intellectual Property Judicial Interpretations (Updated Edition)”. Through its monthly publication “Trends in Intellectual Property Adjudication” and work reporting, the Supreme People’s Court has developed a regular guidance and communication mechanism with lower level courts.

In December 2018, the Chongqing High People’s Court edited and published the 7 th edition of its “Research on Intellectual Property Adjudication in China’； comprising 52 articles and totalling 650,000 words. As a continuous publication by the Judicial Theory Committee and an important series under the Chinese Judicial Theory series, this is a highly influential publication. The Chongqing High People’s Court also jointly organised with the Southwest University of Political Science & Law the “China Intellectual Property Judges’ Forum”. Four forums were held in 2018.

In March 2018, the Guangxi High People’s Court published the “Collection of Written Judgments on Typical Intellectual Property Cases by Guangxi High Court (2011 to 2016)” targeting at intellectual property judges, and developed the “Guidelines on Adjudicating Design Patent Infringement Disputes” to provide standard yardsticks for deciding disputes involving the infringement of design patents.

1. Increasing judicial transparency and promoting fair and
   efficient justice

In 2018, intellectual property adjudication for the People’s Courts implemented the CCP Central Committee’s decisions and plans to deepen reforms comprehensively and to govern according to law comprehensively, and to fulfil the important tasks of promoting open justice and developing an open, dynamic, transparent and convenient sunshine justice mechanism. The courts’ efforts produced positive results.

• Intensifying publicity for greater judicial impact

In conjunction with the World Intellectual Property Day’s theme of “Powering Change: Women in Innovation and Creativity” to celebrate the brilliance of the women who are shaping the world’s intellectual property landscape, the Supreme People’s Court organised the “Symposium on Intellectual Property for Women” on 27 April, which aimed to reflect on how women in the intellectual property sector of the new era could transform their intelligence and

sense of responsibility into the power of innovation. Discussions at the symposium revolved around Xi Jinping’s thoughts on Chinese socialism for the new era and the tenets of the Party’s 19th Congress, where NPC deputies, representatives from the All China’s Women’s Federation and Women’s Judges Association, women in technological innovation within intellectual property sector, women academics, female journalists and women judges from different courts gathered at the symposium to share insights and their aspirations and missions for their intellectual property careers of the new era. Vice President Tao Kaiyuan gave a key note speech entitled “Inner and Outer Cultivation, with gentle justice and judicial wisdom, give every passion and affection to the great journey of reform and innovation”. An MV of the “Intellectual Property Song” was played at the symposium. Written by Vice President Tao, the lyrics express the voice, mission and noble sentiments of the intellectual property fraternity and are deeply moving.

The Jiangsu courts continued to maintain and operate their WeChat official account, the “Jiangsu Intellectual Property Perspective (Jiangsu Zhichan Shiye^f)^ff to increase their influence within and outside the intellectual property adjudication sector. Special columns in professional intellectual property media, such as the Jiangsu High People’s Court’s Sina Weibo and WeChat official accounts were run, publishing regularly information on complex and difficult cases

heard and concluded by the different courts within the province for prompt dissemination of the latest news on intellectual property judicial protection and increase the courts’ impact in intellectual property adjudication within and outside the Jiangsu Province. Since establishing the “Jiangsu IP Vision (Jiangsu Zhichan Shiye)” on WeChat, more than 170 typical cases and nearly 10 articles were published in 182 editions, and the results were encouraging.

• Elaborating reports presented at the National People’s Congress (NPC) and Chinese People’s Political Consultative Conference (CPPCC) (“two conferences”)and live telecast of interviews by all media

During the period of the “two conferences’； to respond to the people’s interest and concern in intellectual property adjudication, the Supreme People’s Court participated in an interview which were telecasted live on all media on 16 March 2018, focusing on the key points noted in the “Supreme People’s Court Work Report”. The invited guests were chief judge Song Xiaoming and deputy chief judges Wang Chuang and Lin Guanghai, who spoke about issues relating to “leveraging the courts as the main channel for protecting intellectual property”. Another invited guest was Justice Song Yushui, Vice President of the Beijing Intellectual Property Court, who was interviewed via online video-conferencing.

The interview focused on Chief Justice Zhou Qiang’s work report, revolving around five main points: the People’s Courts leveraging their intellectual property adjudicatory functions to serve and secure the national strategy of innovation-driven development; increasing oversight and guidance and ensuring consistency in law-application; deepening judicial reform of the intellectual property regime to build a more robust system of adjudication; increase judicial transparency and exchange to elevate China’s international influence in the judicial arena; strengthening development of the intellectual property adjudication team to raise their adjudication capabilities and standard. Detailed figures were quoted, and the observations of the guest commenters were enlightening. The comprehensive sharing of the progress of intellectual adjudication during the past five years and the extensive, multi-dimensional and thorough elaboration of what “leveraging the courts as the main channel for protecting intellectual property” indicated in the “Supreme People’s Court Work Report” means was telecasted live by more than 30 media, and generated positive and enthusiastic public response and social effect.

• Organising thematic activities for “26 April” World Intellectual Property Day and bringing the publicity campaign to a climax

The Supreme People’s Court has celebrated the “26 April” World

Intellectual Property Day since 2009. Its focus has always been on the theme of open justice, as it continues to draw attention to the latest topics and highlights of judicial protection of intellectual property. This is also an excellent opportunity to review and improve on the means and methods of doing publicity on the judicial protection of intellectual property. During the past nine years, our courts have learned and evolved in the way they organise intellectual property outreach programmes, which are now increasingly systematic and up-scaled, creating an excellent brand effect.

Vice President Tao Kaiyuan shared at the press conference of the 2018 Intellectual Property Outreach Week, the overall results achieved by the People’s Courts in 2017 in terms of intellectual property protection and the highlights of their innovative outcomes. Several publications were also released during this time, including the “Intellectual Property Protection by Chinese Courts in 2016” (Chinese and English versions), “Ten Major Intellectual Property Cases and Fifty Typical Cases Adjudicated by China’s Courts in 2016。and the “Supreme People’s Court Annual Report of Intellectual Property Cases (2017)” More than 20 media attended and reported the press conference, and enthusiastic responses and comments generated. The local courts also organised various “26 April” outreach activities based on local circumstances and needs.

• Enhancing open justice to ensure impartial justice

The courts have made significant efforts to publish written judgements, where they actively explored new avenues on the mobile internet environment to promote open justice, and have used extensively platforms such as China Judgements Online (wenshu. court.gov.cn), China Judicial Process Information Online (https:// splcgk.court.gov.cn/gzfwww/) and China Court Hearing Online (tingshen.court.gov.cn/) to build an information-based, data-driven and detail-oriented intellectual property open justice system and to increase the transparency of adjudication. Written judgements appropriate for public access are uploaded on the websites promptly and fully, and updates on their online availability announced regularly. Over time, the scope of such public access will increase and the efficiency of providing accessibility will improve. The written judgements of the Supreme People’s Court Intellectual Property Division are 100% available online.

Advancing public access of the hearing process and online case operations is another area of focus. The courts have improved their management of the adjudication process for intellectual property cases and furthered the development of technology courts to promote adoption of contemporaneous audio- and video-recording and live streaming of the hearing process. New and innovative ways

of open hearing are created, and the scope of open hearing expanded to ensure that the parties can exercise their right to know and right to supervise. Promoting greater use of smart technology has empowered open justice and improved adjudication and efficiency.

The Anhui courts have leveraged the three major open justice platforms to enable online access of written judgements and live streaming of court hearings as much as possible, where appropriate. The Haozhou Intermediate People’s Court have organised open hearings for ten thousand citizens, where people from different sectors were invited to observe the court proceedings when intellectual property cases were heard. For cases suitable for circuit court hearing, the Tongling Intermediate People’s Court would deploy judges to the location of the defendant’s principal establishment, shopping mall or places as such to conduct hearings and face-to-face legal outreach and education.

1. Organising exchanges and cooperation and serving
   broader national and international interests

The intellectual property legal regime draws strength from international commonalities and responses to interactive effects from different regimes. The People’s Courts must actively engage in

international and regional intellectual exchanges and cooperation, and must establish and improve its communication and exchange mechanisms for sharing information on judicial protection of intellectual property to facilitate deeper and objective understanding of the complete set-up of China’s intellectual property judicial protection regime by the different countries. China works to elevate its participation, discourse power and the flexibility to respond to its advantage to changes and challenges, and gives priority to building an environment conducive to trade and investment and creating the image of a responsible power.

• Strengthening international and regional collaboration and exchange

Strengthening international judicial cooperation and exchange: The People’s Courts attaches great importance to strengthening exchanges with international organisations and countries around the world, and to showcasing the results of judicial protection of intellectual property in China and the abilities and accomplishments of Chinese intellectual property judges.

In November 2018, at the invitation of WIPO Director-General Francis Gurry, Vice President Tao Kaiyuan led a delegation for WIPO’s inaugural Intellectual Property Judges Forum in Geneva and her first meeting of with the WIPO Advisory Board of Judges. Delivering the

only key note address at the forum, Justice Tao spoke on the topic “Steadfast in providing judicial protection of intellectual property; working together to create a great future for intellectual property”. Her inspiring address received a positive and enthusiastic response from the audience, and key excerpts of her speech is quoted on WIPO’s website. WIPO and Director-General Gurry expressed their strong support and great recognition for China’s work on intellectual property. The visit provided opportunity for China to share its historical achievements in the judicial protection of intellectual property and to respond to respond to issues of concern, and in doing so, garner maximum understanding and receptiveness of China’s specificities in intellectual property protection from the international community. It was also an excellent platform which China used to make itself heard, contribute the Chinese wisdom and Chinese formula.

The EU-China Anti-Monopoly Judicial Seminar convened in Beijing. Co-organised by the Supreme People’s Court and European anti­monopoly agencies, the seminar was attended by President of the General Court (EGC) of the Court of Justice of the European Union Marc Jaeger, Judge Schwarcz, European anti-monopoly agencies, and China representatives from the EU Commission. During this period, Vice President Tao Kaiyuan and Chief Judge Song Xiaoming met with EGC President Jaeger and his delegation. In addition, the European Union Chamber of Commerce in China today released its “European Business in China-Position Paper”； which highly commended China for establishing intellectual property courts.

The Supreme People’s Court also send representatives to participate in the Inaugural U.S.-China Digital Economy Forum, 140th Annual Meeting of the International Trademark Association, Symposium on Intellectual Property Advanced Seminar for ASEAN+3 2018, the 8th OECD/KPC Competition Workshop for Asia-Pacific Judges, 8th OECD/KPC Competition Workshop for Asia-Pacific Judges and the ICC Commission on Intellectual Property (Fall Conference). It also continued to participate in the negotiations of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, and was involved in the 4th Special Commission meeting.

Cooperation with Europe continued to be very close, as the court also sent representatives to participate in the 21th meeting of the EU- China IP Working Group. Both China and Europe agreed to strengthen their intellectual property dialogue and to deepen cooperation in intellectual property protection. In November, under the China-EU IP Cooperation Project “IP Key China””, a delegation of intellectual property judges from China went on study visits to Germany, Belgium and Luxembourg. This was a programme aimed at fostering

exchanges with the intellectual property-related policy-makers and judiciaries of European authorities to help them understand the level of judicial protection given to intellectual property in China and China’s position of giving equal protection to local and foreign rightsholders, which will give China greater international influence. It will also help us learn and adapt advanced legislative and judicial experiences to further strengthen our intellectual property adjudication system and develop more robust intellectual property protection systems and mechanisms, which will elevate our professional competence in intellectual property adjudication.

Strengthening inter-judicial cooperation and exchange: First, mutual visits and exchange with Hong Kong and Macao. In October 2018, Vice President Tao Kaiyuan led a delegation of eight to visit the Hong Kong Court of Final Appeal and the Court of Final Appeal of Macau at their invitation. This was the first time that mainland and Hong Kong judges held a seminar on the topic of adjudication in Hong Kong. The discussions have enabled the judges from both sides to resonate in many areas as men of the law. The delegation also visited judiciaries in Hong Kong SAR and Macao SAR to confirm the mutual visit mechanism for their judges, as well as participated in intellectual property adjudication seminars in Hong Kong and Macao. The “Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the

Mainland and of the Hong Kong Special Administrative Region” signed with Hong Kong’s Legislative Council provides for the recognition and enforcement of intellectual property-related civil judgements and serves the development of the Guangdong-Hong Kong-Macau Greater Bay Area.

Second, mutual visits and exchange with Taiwan. Between 15 and 21 May, Chief Judge Song Xiaoming visited Taiwan in the capacity of executive director of the China Association of Judges under the invitation of the Taiwan Law Society. The 12-person delegation visited the Taiwan Intellectual Property Court to study the set-up and operations of the specialised court, and other systems relating to the judicial protection of intellectual property, such as “three-in-one” adjudication and technology investigators. With the joint efforts of all members of the delegation, the study visits and exchanges yielded positive results and met the objectives of the trip. On 13 December; Justice Song met with Justice Sung-Mei Hsiung from the Taiwan Intellectual Property Court, who was invited to visit by the China Association of Judges. Both sides discussed intensively on issues such as punitive damages, patent litigation agent, and the source and makeup of technology investigators.

• Organised master class on intellectual property adjudication to strengthen cooperation with WIPO

Organised as a collaborative effort between the Supreme People’s Court and WIPO, the inaugural “Master Class on IP Adjudication” was held on 21-23 August 2018 at the National Judges College in Beijing. This judicial training was the most important and the highest level, and where the discussion topics of which were the most in-depth. Chief Justice and President of the Supreme People’s Court Zhou Qiang specially met with Deputy Director-General of WIPO Wang Binying, Legal Counsel and head of the WIPO legal team Frits Bontekoe, and representative of the students and instructors of the master class. The class consisted of 7 lectures, 24 formal students and 15 observers from China, the United States, Germany, Australia, Belgium, Korea, Singapore, the Philippines, Vietnam, Thailand, Moldova, Brazil, Latvia, Malaysia and South Africa. More than 40 judges from 15 countries gathered here to learn and share, using English as the only language of communication.

Chief Justice Zhou noted that China’s courts engage closely with WIPO and collaboration between them has been fruitful. The success of this master class is a major outcome of this collaboration, and is instrumental in encouraging the judges from different countries to engage with each other more, and in facilitating judicial protection

of intellectual property in different countries. This success also marks the advancement of the cooperation between the Supreme People’s Court and WIPO to new heights, and opens up avenues for making known to the world China’s achievements in the judicial protection of intellectual property, and with widened international exposure, China’s intellectual property judges will truly become more international in their legal knowledge and perspectives.

1. Enhancing judicial capabilities and strengthening
   character-building for judges

Solid and sound training has always been the cornerstone of intellectual property adjudication for the People’s Court. The intellectual adjudication team of the courts of every level must have the initiative to adopt a higher political stance and to elevate their professional qualities and competence. The courts must also apply themselves to building an intellectual property adjudication team that is steadfast in political belief, that has the sense of totality, that is well-versed with the law and technically-skilled, and that possess an international perspective, so as to provide strong organisational underpinnings for the adjudication of intellectual property in the new era.

(1) Intensifying development of ideological and political thoughts to elevate the level of thinking and political calibre

The Party’s political development is a fundamental development. Intellectual property judges must appreciate the full importance of the Party’s political development to the People’s Courts’ development, uphold the absolute leadership of the party, and stay determined and unwavering in their political belief. They must develop greater political awareness, improve on their political qualities and capabilities, and strengthen their political conviction, and they must adhere strictly to political discipline and political rules.

In early 2018, a talkfest whose theme was “Glory and Dream, Mission and Responsibility” was held at the Beijing Intellectual Property Court. Vice President Tao Kaiyuan shared her emotion affinity, ideal and pursuit with regard to intellectual property rights, and elicited strong resonance among the cadre police officers.

In June 2018, a Party Day activity under the theme “In pursuit of Yan’an’s footprint, uphold the Yan’an Spirit” was held in the old revolutionary base of Yan’an. The party members felt deeply enlightened. Between October and December, the “Photography Exhibition Celebrating the 40th Anniversary of Reform and Opening- up” was held, where brilliant photo images gave vivid expression to the work of intellectual property judicial protection, the devotion of the adjudication team, and the inspiring ethos and energy.

(2) Strengthening training on adjudication operations to improve on the judicial capabilities of in adjudication

The “Opinions on Several Issues concerning Strengthening Reform and Innovation in Intellectual Property Adjudication” specifies the need to devote great effort to develop the intellectual property adjudication team into a “formalised, specialised, professionalised and internationally savvy” team. A high-calibre team of judges is essential for sustaining the development of intellectual property judicial operations. In 2018, the Supreme People’s Court organised more than thirty sessions of intellectual property training at the National Judges* College and the local courts. The court also organised three sessions of the “Expert Lecture Series for the Party Branch of the Intellectual Property Divisions’； focusing on topics such as the application of law in patent examination, criminal adjudication of intellectual property infringement, trademark protection in a digital environment, legal liability of network service operators, which was very well-received by the participants.

The local courts also conducted training. To improve the professional capabilities of intellectual property judges, for example, the Fujian High People’s Court, organised a training on adjudication skills for sixty trainees between 14 to 23 August 2018 at the East China University of Political Science and Law.

• Strengthening party ethics and government integrity to ensure that the team is clean and honest

In 2018, the intellectual property divisions of all the courts have followed through with the requirement to enforce strict governance on the party, the court, the division and in management, and has dedicated much effort to developing good conduct and discipline within the intellectual property adjudication teams, focusing on correcting the “four problematic habits (sifeng)^,f: formalism, bureaucratism, hedonism and extravagance, and on striking problems that elicit strong public reaction. Checks and corrective actions are taken promptly, regularly and persistently.

The different levels of adjudication divisions are also committed to educating and guiding cadre police officers on judicial conscience and to enforcing rigorous discipline on judicial behaviour as part of a continuous process to improve judicial conduct. Greater prevention and control measures have also been instituted to guard against the risks of judicial dishonesty. Another area that has been given urgent attention is the development and improvement of management and supervision mechanisms that accommodate the new mechanism for exercising adjudication powers, and that support the judicial accountability system. Finally, the courts also take rigorous action in investigating and punishing fraudulent and adjudication-for-gain behaviour. Strict and determined measures are imposed to eradicate rotten apples to ensure that the action and stringency are indeed genuine, undeterred and sustained.

Conclusion

In 2019, we celebrate the 70th year of the founding of the People’s Republic of China. But 2019 is also the critical year for achieving the building of a “complete xiaokang” society and the first Centenary Goal, and the first year of the People’s courts’ fifth Five-Year Reform Programme. As we usher in a new chapter in history, the People’s Courts face an exciting future with higher demands and a people with higher expectations. Enabling the courts to serve the larger good, and enabling justice to be done for the people and done impartially are tasks that are increasingly laborious and onerous.

The new era is for go-getters. And the answers are for us to give. Judicial protection of intellectual property by the People’s Courts will adhere to the path of Chinese socialism for the new era as propounded by President Xi Jinping. The courts will discern and manage the key social contradictions and changes in the new era,

and concentrate efforts on enhancing the judicial abilities and performance in intellectual property. They will reinforce the sense of crisis and of responsibility, and take effective precautions against risks and challenges. All are determined to transform and innovate, and to fulfil their undertakings to scale greater heights in the building of a law-based China, and to give rightsholders a greater sense of gain, of happiness and of security. These efforts will contribute to making China a global powerhouse in intellectual property and in science and technology, to providing effective judicial safeguards for the continued robust development of the economy, and to achieving notable results for the celebration of the 70th year of the founding of the People’s Republic of China.

Introduction

General Secretary Xi Jinping emphasized that innovation is the primary force propelling development, that protecting intellectual property rights (IPRs) protects innovation, and that the rule of law for intellectual property (IP) protection should be strengthened. In September 2021, the Central Committee of the Communist Party of China (CPC) and the State Council released The Outline for Building an Intellectual Property Powerhouse (2021-2035) for the purposes of advancing the building of an IP powerhouse in an overall manner, comprehensively improving IP creation, use, protection, management and services, and maximizing the critical role of the IP system in the socialist modernization.

In 2021, people’s courts adhered to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era and thoroughly implemented Xi Jinping Thought on the Rule of Law. The courts earnestly implemented General secretary Xi Jinping’s important elaboration of enhancing the IPRs protection, acquired a deep understanding of the decisive significance of the two establishments of both Comrade Xi Jinping core position on the Party Central Committee and in the Party as a whole and the guiding role of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era; boosted four consciousnesses of the need to maintain political integrity, think in big-picture terms, follow the leadership core, and keep in alignment with the central Party leadership; stayed four self-confidence in the path, the theory, the system, and the culture of socialism with Chinese characteristics; upheld General Secretary Xi Jinping’s position as the core of the CPC Central Committee and the whole Party, as well as the authority of the CPC Central Committee and its centralized, unified leadership. People’s courts were relentlessly in their pursuit of “Striving to Make People Perceive Fairness and Justice in Every Judicial Case”： accurately grasped the overall requirements for strengthening the IP adjudication in the new era. The professional adjudication system was largely established, the capacity for professional adjudication was significantly increased, and the level of judicial IP protection was substantially enhanced. People’s courts have provided strong judicial service in coordinating pandemic prevention and economic society development. Satisfaction with IP trials has increased in recent years, the entire society gradually strengthened an awareness of the importance of respecting and protecting IPRs. The global reach of China’s IP adjudication has continued to expand.

1. Significant Increase of Cases and Continuous
   Improvement in Trial Quality and Efficiency

In 2021, people’s courts adjudicated all types of IP cases in an impartial and efficient way in accordance with the law. A total of 642,968 IP-related cases were accepted by people’s courts, including first and second instance cases and as well as apply-for-retrial cases, and 601,544 cases were concluded (including carried over cases, ditto hereinafter) representing a respective year-on-year increase of 22.33% and 14.7%.

• Quantity of Each Type of Cases

The Supreme People’s Court of China (SPC) accepted 4,243 IP cases and concluded 3,557, up by 22.28% and 9.11% respectively on a year-on-year basis. Local people’s courts at all levels accepted 550,263 cases in the first instance and concluded 515,861, up by 24.12% and 16.52% respectively from 2020. Among them, 31,618 patent cases were accepted, with a year-on-year increase of 10.98%, 124,716 trademark cases, up by 59.62%, 360,489 copyright cases, up by 14.99%, 4,015 technology contract cases, up by 22.52%, 8,419 competition-related cases, up by 78.26%, and 21,006 other civil disputes over IPRs with a year-on-year increase of 38.01%. Local people’s courts at all levels accepted 49,084 cases of the second instance and concluded 45,468, up by 14.22% and 4.5% respectively on a year-on-year basis.

The SPC accepted 2,852 administrative cases on IPRs and concluded 2,487, up by 49.4% and 43.34% compared with those of 2020. Local people’s courts at all levels accepted 20,563 administrative cases of first instance on IPRs, and concluded 19,342, up by 11.37% and 7.80% compared with 2020 respectively. Among them, 1,810 administrative cases on patent were accepted, with a year-on-year increase of 27.73%; 18,734 administrative cases on trademark, up by 9.97%; and 19 on copyright cases with an increase of 7 cases. Local people’s courts at all levels accepted 8,215 administrative IP cases of second instance and concluded 7,418, up by 34.85% and 19.97% respectively from 2020. Among them, 5,636 cases were sustained, judgments of 1,597 cases were reversed, 1 case remanded for retrial, 145 cases withdrawn, 11 cases dismissed, and 28 cases resolved in other means.

Local people’s courts at all levels accepted 6,276 first-instance criminal cases of IPRs infringement and concluded 6,046, up by 13.2% and 9.53% respectively on a year-on-year basis. Among them, 5,869 trademark infringement and 333 copyright infringement cases were accepted, an increase of 12.8% and 9.54% respectively. Among these first-instance criminal cases, there were 2,558 cases of counterfeiting registered trademarks, up by 13.19%; 2,623 cases of selling goods with counterfeited registered trademarks (up by 3.76%); 476 illegally manufacturing or selling illegally manufactured logos of registered trademarks (up by 20.51%); 313 criminal cases of copyright infringement (up by 14.65%); 15 criminal cases of selling infringing copies (increase by 2); and 61 criminal cases of trade secret infringement (increase by 16). Local people’s courts at all levels accepted 1,050 second-instance criminal cases of IP infringement and concluded 997, up by 20.83% and 16.74% respectively.

• Features of Cases

The following are the primary characteristics of IP cases received by people’s courts.

Internet-related cases on a continuous rise. China’s Internet industry has developed rapidly. Internet has become one of the most predominant areas that IP infringement occurs, and therefore IP infringement violations on the Internet has become the focal point of the IP judiciary gradually. In 2021, the three Internet courts in Hangzhou, Beijing and Guangzhou accepted a total of 66,148 new cases involving various types of Internet IPRs, an increase of 6.64% over the previous year. The number of Internet cases has steadily increasing year by year, and more legal issues involved are novel, complex, and perplexing. In the Internet environment, infringements are easier to commit, which are more concealed and complicated. While the impact is greater; gathering and fixing evidence is harder. Consequently, the difficulty of right holders’ ability to defend their rights is also rising. Strengthening the rule of law in cyberspace and ensuring the protection of innovation and creativity on the Internet is critical for the judicial protection of IPRs for people’s courts.

New types of disputes in proliferation. Innovation is critical to China’s overall modernization development. In recent years, the booming new technologies, new business forms and models have injected new momentum into the economic and social development, brought new legal issues as well. The number of new- type cases involving core Internet technologies, gene technologies, communications, integrated circuits, artificial intelligence, Internet platform economy, etc., continues to grow, complicating the determination of complex technical facts and the application of laws, poses new challenges to judicial decisions on the boundary of rights and the determination of liability for the IPRs infringement in these new business fields and forms. However; people’s courts have actively responded to judicial demand for IPR protection in new technologies, new industries, new business forms and models, and proactively explored ways to strengthen the judicial IPR protection rules in relevant fields. In 2021, people’s courts have adjudicated a batch of new-type IP cases involving biomedicine, online gaming, live webcast, “Big data-enabled price discrimination against existing customers’： sharing economy, artificial intelligence, etc., and all of which sparked widespread public concern.

Cases Involving Public Interests Increased. The interests involved in IPRs are complicated and often closely related to the social and public interests. The trial of cases needs to balance the protection of individual rights and public interests, to accurately grasp differentiated value orientation and to properly handle the relationship between development and security even better. In 2021, in the areas such as administrative granting and reviewing, civil infringement and competition order maintenance, people’s courts heard a number of cases involving malicious trademark registration, the application of “Notice-and-Delete” Rule, fan works, etc. in order to keep the balance between private and public interests.

Expanding protection in criminal cases. In recent years, interlocked civil and criminal cases have brought up many problems in application of law, such as IP infringement crimes using technologies such as deep linking and game plug-ins are constantly emerging. The Criminal Law’s Amendment (XI), effective as of March 1, 2021, has made major revisions for the crime of IP infringement and strongly supported further judicial IP protection improvement. By following the requirement of “improving criminal laws and judicial interpretations, intensifying criminal crackdown” put forward by General Secretary Xi Jinping, people’s courts adhered to the principles of “No Penalty without A Law” and “Strict Protection。punished crimes such as counterfeiting registered trademarks, copyright infringement, trade secrets infringement, as well as producing and selling fake seeds in accordance with the law. By strongly protected the legitimate rights and interests of right holders and consumers, a sound market order is effectively maintained. In 2021, the number of criminal cases of IP infringement accepted and concluded by local people’s courts at all levels rose rapidly, and the deterrent and preventive functions of criminal penalties in punishing IP infringement and counterfeiting became increasingly prominent.

1. Enhancing the Protection of Science and
   Technology Innovation to Serve the Innovation-driven
   Development

Innovation is the primary driving force for development and the essential condition for implementing new development concepts, establishing new development patterns and promoting high-quality growth. People’s courts have emphasized the role of IP adjudication in stimulating scientific and technological innovation, and stove to ensure that the protection of IPRs is proportional to the extent of its technological contribution. People’s courts are constantly synthesizing and refining rules governing the judicial protection of scientific and technological innovation in order to foster continuous innovation of technology and industrial upgrading.

• Improving Quality and Efficiency of Adjudication

People’s courts hearing numerous IP cases in accordance with the law. By formulating judicial interpretations and judicial policies, and issued guiding cases, gazetted cases and annual cases, the courts effectively strengthened trial guidance, standardized the criteria for adjuration, facilitated the unification of administrative law enforcement and adjudication standards, and maintained a consistently high level of trial competence. The SPC promulgated the Provisions on Several Issues concerning the Application of Law in Civil Cases of Patent Rights Relating to Pharmaceutical Products Applied for Registration, focusing on the procedural issues that must be resolved following the implementation of the patent linkage system for pharmaceutical products, particularly the interaction and cooperation between litigation procedures and administrative procedures of pharmaceutical products evaluation or approval, as well as the procedure of administrative decision. It established clear guidelines for the timely and impartial trial of relevant cases, as well as institutional incentives and judicial guarantees for the pharmaceutical industry’s independent innovation and high- quality development. The SPC also issued the Several Provisions on the Specific Application of Law in the Trial of Cases Involving Disputes over Infringement upon Rights of New Plant Varieties (II), and released the first series of typical cases of judicial IP protection in the seed industry tried by people’ s courts. The SPC summarized recent judicial practices in recent years, effectively implemented the Seed Law, strengthened the protection of plant variety rights, stimulated innovation in breeding and safeguarded the scientific and technological self-reliance of the seed industry. These initiatives have enhanced the judicial protection of IPRs in China’s seed industry, and created a sound legal environment for the revitalization of the seed

industry.

After three years of pilot operation, the SPC’s IP Court accepted 9,368 technical cases and concluded 7,625, which involving patent, new plant variety and layout design of integrated circuit. 4,335 were accepted and 3,460 were concluded in 2021. Among them, over a quarter of cases involved strategic emerging industries such as new generation information technology, biomedicine, high-end equipment manufacturing, and energy conservation and environmental protection. In January 2022, the China Association for Science and Technology, the China Society of Law, respectively completed the third-party assessments of the SPC’s IP Court pilot program. Each assessment concluded that the pilot program was properly focused and effective in achieving the CPC’s stated objectives of its establishment, further improving the appellate trial mechanism for IP cases at the national level, and vigorously promoting unification of adjudication standards and improvement of trial quality and efficiency of technology-related cases. On 27 February, 2022, Justice Zhou Qiang, President of the SPC, briefed the Standing Committee of the 13 ^th National People’s Congress on the implementation of the Decision on Several Issues concerning Judicial Procedures for Patent and Other Intellectual Property Cases, which got the full affirmation by the Standing Committee after deliberation.

• Reinforcing the Protection of Original Innovation

People’s courts strengthened the review of legality of administrative acts over patent grant and confirmation in order to improve the quality. People’s courts correctly adjudicated IP cases of high-tech fields such as 5G technology, biomedicine, high-end equipment manufacturing, new materials and new energy, and thereby sparked scientific and technological innovation. Additionally, the courts strengthened IP protection in emerging fields, fairly adjudicated cases involving the sharing economy, artificial intelligence, big data, cloud computing and other new-type IP cases, clarifying protection rules and rights boundaries, guiding the healthy and orderly development of new technologies, new forms and models of business along the rule of law’s path. The SPC, in the invalidity cases of invention patent involving “magnetic resonance imaging” and “traditional Chinese medicine (TCM) sorting machine”, interpreted the claims in a scientific and reasonable manner, upheld the validity of the patent, serving and safeguarding the fight against COVID-19 according to the law; in patent ownership cases involving “high-temperature microwave expanding furnace’： “fingerprint identification’： the criteria for determining disputes over the ownership of on-duty inventions were clarified to stimulate innovation and creativity among scientific researchers and protected the legitimate rights and interests of scientific and technological innovation subjects in accordance with the law; in the variety rights cases involving rice “Jinjing 818” and corn “Longping 206’； the SPC strengthened the IPR protection and promoted self­reliance and self-improvement of the seed industry; the SPC also studied and formulated the guiding opinions on strengthening the criminal trial involving seeds, punishing seed-related crimes in conformity with the law, and accelerating the revitalization of the seed industry. Furthermore, the SPC hosted a symposium on the judicial protection of IPRs in TCM in terms of preserving rightfulness, innovation and inheritance. Jiangsu High People’s Court and five provincial authorities jointly selected top 34 enterprises from key development industry chains, and provided help to them in the technology research. Henan High People’s Court issued 20 measures aimed at comprehensive strengthening the judicial protection of IPRs, particularly in emerging fields such as artificial intelligence and biomedicine. Fujian Fuzhou Intermediate People’s Court issued the Implementing Opinions on Strengthening the Judicial Protection of Intellectual Property Rights of Key Enterprises in Technology-Intensive Industries (for Trial Implementation), responding actively to the judicial demand for IPRs of high-tech enterprises.

• Strengthening Registered Trademark Protection to
  Assist the Construction of Brand Power

People’s courts have strove to improve the quality of the administrative cases of trademark granting and reviewing, resolutely crack down on malicious trademark registration not for the purpose of trademark use, and promote a normal and regulated trademark application and registration order. People’s courts also have strengthened the protection of well-known trademarks, and severely punished trademark attachment, counterfeiting and other “free­riding^ activities. The courts scientifically and reasonably defined the boundary of trademark rights and the scope of protection, enhanced the role of trademark usage in determining the protective scope of trademark rights, and actively guided the right holder to consistently and practically use the trademark to bring into play the identification function of the trademark and protect the legitimate rights and interests of consumers.

• Safeguarding the Trademark Registration

The SPC and several local people’s courts collaborated with the National Intellectual Property Administration to hold seminars on trademark registration and reviewing cases to exchange views with the goal of quality improvement. The SPC resolved a number of administrative trademark cases according to the law, and further consummated the recognition standards for “distinctiveness” in trademark registration applications. Based on the actual circumstances, Beijing IP Court formulated the Implementing Plan for Promoting the Reform of Split-flowing Simple and Complex Administrative Proceedings (for Trial Implementation), which made an attempt to improve the rules on the application of simplified procedures for trademark administrative proceedings and the application of electronic litigation to split-flow the trademark administration cases in respect of the complexity, significance and duration of trial. Jiangsu Suzhou Intermediate People’s Court advocated for the establishment of a whole-process mechanism to combat malicious trademark registration in trademark infringement cases.

• Regulating the Use of Registered Trademarks

People’s courts continued to intensify the punishment on trademark infringement and strengthen the judicial protection for well-known trademarks, traditional brands and time-honored brands. Zhejiang High People’s Court organized special campaigns and released typical cases on brand protection. Xinjiang Tacheng Intermediate People’s Court coordinated the Municipal Administration for Market Regulation to strengthen inspection and regulation to fundamentally curb the highly frequent trademark counterfeiting crimes from the source. Sichuan Chengdu Intermediate People’s Court transferred relevant trademark infringement clues to administrative authorities, and promoted the practice of determining the administrative penalties in trademark infringement cases by referring to the civil infringement case standards to reduce the quantity of similar IP disputes. Local people’s courts of different jurisdictions also emphasized the deterrent effect of punitive damages and criminal sanctions on trademark infringement. Courts in Guangdong Province awarded treble punitive damages in 2 trademark infringement cases, with damages of RMB 10 million and RMB 30 million respectively; and a court in Guizhou Province and a court in Heilongjiang Province imposed a fine of RMB 21 million and RMB 21.25 million respectively in two trademark counterfeiting cases.

• Actively Responding to Social Concerns

With the increasing judicial protection of registered trademarks, in particular the increasing amount of damages awarded the abuse of trademark rights, in a malicious or fraudulent manner, often occurred. These incidents have caused serious disturbances to the normal production and operation of micro, small and medium enterprises (MSMEs) and self-employed individuals which have aroused great social concern. The SPC timely held a question-and- answer session on the judicial protection of geographical indications of Tongguan Roujiamo (the brand of the steamed meat roll named after Tongguan) and Xiaoyao Town Hulatang (the brand of the spicy soup originally made in Xiaoyao Town), and resolving ambiguities to guide judicial practice, protect geographical indications, and severely punish malicious litigation, thereby achieving positive social effects. The Sichuan courts handled the “Green Pepper” trademark disputes expeditiously and in accordance with the law, preserving the order of trademark usage, clarifying the boundary of trademark rights, and ensuring legitimate use and honest operation.

1. Improving Copyright Protection to Accelerate the
   Construction of Strong Cultural Power

Based on judicial function, people’s courts have vigorously promoted core socialist values while fully executing the leading and guiding function of copyright adjudication for outstanding culture. The courts have strengthened the protection for culture creators* rights and interests, safeguarded the legitimate rights and interests of those who distribute their works legally, and continuously improved the copyright protection in respect of traditional culture and traditional knowledge to boost the healthy development of cultural industry.

• Carrying forward Socialist Core Values

People’s courts at all levels protected the inheritance of red classics and the legitimate rights and interests of heroes and martyrs, regulating the order of cultural dissemination, guiding the public to consciously resist historical nihilism, incivilization, vulgarity and kitsch, strengthening IPRs protection such as genetic resources, traditional culture, traditional knowledge and folk literature, and promoting the collation and utilization of intangible cultural heritage and the creative transformation and innovative development of Chinese excellent traditional culture. Beijing IP Court concluded the copyright infringement dispute over acrobatic works to strengthen the protection of traditional acrobatic works. Shijingshan Primary People’s Court in Beijing conducted a special research on 4 types of disputes over IPRs which involved the infringement of the Winter Olympic Games logos to contribute to the success of Winter Olympic Games and the Winter Paralympic Games in Beijing. A court of Quanzhou in Fujian province promulgated the Implementing Opinions on Strengthening the Judicial Protection of World Heritage Properties, which established a circuit court for the protection of Maritime Silk Road Historical Sites to strengthen the protection of intangible cultural heritage and promote the protection and utilization of historical relics as well as the protection and inheritance of cultural heritage. Jiangxi Jingdezhen Intermediate People’s Court established an IP division to provide judicial guarantee for the construction of the National Ceramic Culture Inheritance and Innovation Pilot Zone.

• Improving the Regulated Development of Emerging Business Forms

In recent years, copyright infringement cases increased in the domains of online games, sports events and live webcasts, and relevant judicial decisions have continued to improve the rules for the practical recognition and protection of works. In 2021, the amended Copyright Law of the People’s Republic of China came into force. People’s courts at all levels conducted researches on the amendment to ensure that copyright cases were heard in accordance with the law and to promote the healthy and sustainable development of the cultural industry. The SPC held a series of symposiums to conduct in-depth discussions on legal issues about the copyright protection of game live-streaming footage and the audio-visual work clips, and concluded a series of cases on the latter one. Courts in Tianjin convened deliberate discussion on issues such as ICP filing, application market, short videos, IPTV infringement and the amount of compensation involved in the Internet copyright cases, and formulated the Answers to Issues Concerning the Trial of Internet Copyright Cases to guide the resolution of complicated issues in judicial practice.

• Regulating Adjudication of Rights Protection Cases

With the rapid development of cultural industry and the increased awareness of copyright holders, the copyright protection litigation has continued to grow. Protecting creators* rights and interests in conformity with legal provisions, keeping a balance between encouraging creativity and safeguarding people’s cultural rights and interests, and promoting the creation and dissemination of intellectual works are all critical issues that must be addressed in copyright protection. In a series of cases involving copyright infringement by KTV operators, the SPC clarified the issues of electronic evidence determination, lowering the burden of proof for the parties, and effectively protected the legitimate rights of right holders. Chongqing High People’s Court and Sichuan High People’s Court researched and drafted the Minutes of the Judges’ Meeting on Determining the Compensation Amount for Cases Involving Copyright Infringement of Audio-visual Works by KTV Operators, in response to the issues including heavy caseload of copyright infringement in audio-visual works and the ambiguous standards for determining the amount of compensation awarded in their jurisdictions, guided the healthy development of relevant industries according to law.

1. Strengthening the Protection of Fair Competition
   and Protecting a Law-based Market

The IPR protection and the promotion of fair competition are the necessary preconditions for establishing a market-oriented and law-based international business environment, as well as for constructing a modern economic system and improving the socialist market economic system. In 2021, people’s courts intensified the crackdown on unfair competition activities such as infringement of trade secrets, strengthened on judicial regulation for monopolies by Internet platform enterprises. Acts that disrupted fair competition or market order such as “Either-Or Choice” of the Internet platform or “Big data-enabled price discrimination against existing customers” have been severely punished, so as to effectively protect the lawful rights of consumers and the interests of public. By maintaining and promoting fair market competition, the disorderly capital expansion was prevented.

(I) Strengthening Anti-monopoly and Anti-unfair competition Adjudication

People’s courts have properly adjudicated anti-monopoly and unfair competition cases. Judicial decisions fulfilled the functions of rule guidance and value orientation in maintaining fair competition in the market, increasing enterprise awareness of fair competition, and guiding the creation of a market environment that respects, protects and promotes fair competition. In the horizontal monopoly agreement case of “joint operation of driving schools”, the joint venture agreement and self-discipline convention were declared null and void, putting an end to monopolistic practice at their sources. People’s courts also actively explored and improved the standards for defining the monopolistic acts of Internet platforms. The practices of excessively collecting and using personal information, the use of algorithms to commit price discrimination and fraud were also severely punished, which regulated the market competition order. The courts heard cases including data rights, transactions, services and privacy protection, explored and improved the rules for data right protection, and promoted the development of an open, healthy and safe digital environment. The unfair competition practices such as imitating, confusion, false publicity, and commercial defamation were forbidden through the judiciary’s efforts to purify the market environment, and guide business operators to join in positive competitions through technological innovation. The protection of trade secrets was further tightened. Efforts have also been made to deal with the relationship between the protection of trade secrets and freedom of employment, as well as the relationship between the non-compete restraints and the flow of talents to promote the reasonable mobility of talented personnel. The specific measures for protecting trade secrets in litigation were clarified, assuaging right holders’ misgivings about “secondary disclosure” and encouraging them to defend their rights in accordance with the law. To address the issues including inadequate compensation and high costs, the court effectively increased the support for damages and reasonable expenses for rights maintenance, awarding RMB 159 million in the “Shannon” technical secrets infringement case.

(II) Vigorously Promoting the Unification of Adjudication Criteria

The SPC reported to the NPC Standing Committee on the study and implementation of the Report on the Law Enforcement Inspection of the Anti-Unfair Competition Law and its Deliberations. The SPC issued the Interpretations on Several Issues Concerning the Application of the Anti-unfair Competition Law of the People’s Republic of China after research, which, in accordance with the newly amended Anti-Unfair Competition Law, focused on refining the provisions of Article 2 of the Anti-Unfair Competition Law, as well as counterfeiting and confusion, false publicity and unfair competition on the Internet, etc.. The Interpretation is a timely response to the judicial needs of emerging fields and new business forms which is critical in strengthening the adjudication of anti-unfair competition cases, consolidating the fundamental position of competition policy, and promoting the formation of a domestic unified market that is efficient, well- regulated and fully open. The SPC published 20 model cases on Internet IPRs protection, anti-monopoly and anti-unfair competition, indicating the judiciary’s unwavering commitment to fostering a fair and competitive law-based environment.

1. Deepening the Adjudication Reform and
   Promoting Comprehensive Protection

In 2021, people’s courts emphasized the importance of resolving difficult problems through reform thinking and protecting innovation in novel ways. The Plan for Judicial Protection of Intellectual Property by People’s Courts (2021-2025) and the Opinions on Strengthening the Trial of Cases Involving Intellectual Property Rights in the New Era to Provide Effective Judicial Services and Support for Building China into an Intellectual Property Rights Power were issued, which promoted the judicial protection capability and standard in IPR protection steadily. It has made significant strides towards improving the professional trial system and promoting litigation standards. Simultaneously, people’s courts have actively strengthened the mechanism for judicial adjudication and administrative enforcement, improved coordination and cooperation with IPRs administrative departments, promoted the unification of administrative enforcement and judicial adjudication standards, and made efforts to promote a sound pattern of IPRs protection.

(I) Optimizing the Specialized IP Trial System with Chinese Characteristics

China has established a specialized IP adjudication system, with the SPC’s IP judicial departments serving as the anchor, 4 IP courts serving as the model, 27 IP divisions in local intermediate people’s courts serving as the focal points, and IP divisions of the local courts at all levels serving as the support. The appellate trial mechanism for IP cases at the national level was advanced, the building of specialized IP organs was reinforced, and the function of the Internet courts and IP divisions in local courts at various levels were under improvement. The SPC formulated the Several Provisions on Jurisdiction over Intellectual Property Civil and Administrative Cases of First Instance, which strengthened the judicial protection system through scientific jurisdiction, rationally positioned the trial functions of courts at all four levels, further optimized trial resource allocation, facilitated parties in litigations, effectively resolved disputes, and resolved current inconsistency problems in the standards, systems and inconvenience of IP cases jurisdiction of first instance. The SPC has continued to improve mechanism for the “3-in-T integrated trial of civil, criminal and administrative IP cases, and effectively guide the promotion of reform. Tibet High People’s Court issued the Implementing Plan for Integrated 3-in-1 Trial of Intellectual Property Cases to ensure consistent and unified adjudication. Hainan High People’s Court’s Opinions on Several Issues of Designated Jurisdiction over Criminal Cases Involving Intellectual Property Rights clarified the scope of IP-related criminal cases.

Diversified technical facts investigation mechanism has been improved. “The National Court Technical Investigator Talent Database” included a list of over 450 technology experts covering more than 30 technology fields, effectively alleviating the difficulties of fact-finding in technical cases by dispatching experts on demand nationwide. Shanghai IP Court initiated a mechanism of entrusting technical fact investigation to other professional agencies, which could meet the technical investigation demands on IP adjudication for courts at various levels in Shanghai. Based on the part-time technical investigators, Shenyang Intermediate People’s Court explored the establishment of a full-time technical investigators system on the basis of the improvement in the selection of part-time technical investigators.

(II) Improving the Litigation System Compatible with IP Adjudication

The SPC actively conducted researches and studies on litigation rules consistent with IP practice, and promoted the improvement of the IP litigation system. The SPC issued the Interpretation on the Application of Punitive Damages in the Trial of Intellectual Property Infringement Civil Cases, which improves the regulations on punitive damages that were compatible with the provisions of the Civil Code. Guided by the principle of Comprehensive and Equal Protection, the interpretation clarified the applicable conditions, improved the operability of the judicial application of punitive damages, ensured unified criteria for punitive damages application, punished serious infringement upon IPRs, and worked to resolve the difficult problem of “low compensation and high costs”. The SPC issued 6 model cases on punitive damages for infringements of IPRs. Approximately 895 cases in 2021 resulted in punitive damages being awarded to infringers. The SPC issued the Official Reply on Issues concerning the Defendants’ Request for Reasonable Expenses in Intellectual Property Infringement Litigation on the Ground of Plaintiff’s Abuses of Rights to uphold the bona fide doctrine, fully exploit the role of reasonable expenses such as attorneys* fees in regulating parties’ litigation behaviour; support claims for reasonable expenses from abusive litigants, guide parties in exercising their rights in good faith, and prevent right abusement in the meantime. The SPC also summarized the judicial practices, and in collaboration with the Supreme People’s Procuratorate, examined the formulation of supporting judicial interpretations to ensure the effective implementation of the Criminal Law’s Amendment (XI). The amended eighteen judicial interpretations on IPRs entered into force on January 1, 2021, concurrently with the Civil Code, promoting greater uniformity in the scale of adjudication of IP cases.

Local people’s courts at all levels also carried out pilot programs in small claims IP litigation and single-judge trials, classifying cases based on their complexity, significance, and duration of trial. They actively used modern technologies such as 5G, Augmented Reality, and Artificial Intelligence to conduct online litigation, consolidate and enhance smart court construction achievements to overcome the impact of COVID-19 pandemic, and comprehensively promote the modernization of the adjudication system and expertise. Beijing High People’s Court formulated the Guidelines on the Evidence Rules for Intellectual Property Civil Litigation in an attempt to address issue of the difficulty in adducing evidence. Zhejiang High People’s Court promoted the application of copyright examination by AI to check image duplicate, identifying the innovative points and evaluate similarities. The AI assistant has been put into practice in 173 cases, with an effective duplicate check rate of 43%. Hulunbuir Intermediate People’s Court in Inner Mongolia piloted the use of the judicial block-chain platform to provide efficient and convenient technical support for IP protection before and during the trial. Ningxia Yinchuan Intermediate People’s Court formulated the Guidelines for the Fast Trial Mechanism for Typed Intellectual Property Cases, which effectively reduced the average term of IP case trial.

• Actively Participating in Establishing an Overall Protection Framework for IPRs

Protecting IP rights is a systematic endeavour. People’s courts have always laid stress on coordination and cooperation, actively participating in the development of a comprehensive protection system and bolstering systemic protection capacity. The SPC was a positive participant in the work to crack down IP infringement and counterfeiting, as well as the formulation of significant IP protection documents. It established communication and liaison mechanisms with the State Intellectual Property Office and the State Anti-Monopoly Bureau to facilitate an effective interface between administrative enforcement and the judiciary. It signed a memorandum of cooperation with the Ministry of Agriculture and Rural Affairs and jointly hosted a symposium on IPRs protection in the seed industry, established an expert consultation mechanism for judicial protection of IPRs in seed industry, actively promoted the revitalization of the seed industry. Additionally, the SPC bolstered coordination with the National Administration of Traditional Chinese Medicine and the State Intellectual Property Office in order to promote the establishment of special rules and protection mechanisms in patent granting for TCM. The SPC continued to advise courts in the Yangtze River Delta and other regions to establish cross-regional and inter-departmental collaboration mechanisms with administrative authorities in order to foster regional collaborative innovation. As a furtherance to the Notice of Establishing an Online Litigation and Mediation Connecting Mechanism for Intellectual Property Disputes jointly issued by the SPC and the National Intellectual Property Administration, an online platform that connects litigation and mediation by incorporating mediators and mediating organizations at all levels was established to enable the whole-process online IP dispute mediation. There were 289 mediation organizations and 1,635 mediators in the platform, and over 20,000 IP cases were assigned to this platform by local courts for pre-litigation mediation. Qinghai High People’s Court and the Qinghai Administration for Market Regulation signed the Memorandum of Cooperation on Joint Punishment of Seriously Dishonest Entities in Intellectual Property (Patents) Domain which was intended to jointly punish the dishonest entities in respect of IP infringement. Xinjiang High People’s Court and the Xinjiang Administration for Market Regulation signed the Framework Agreement on Intellectual Property Protection Cooperation to promote cross-departmental coordination. Courts in Hebei Province have actively participated in special actions such as the campaign against counterfeiting agricultural materials and the joint action of IP protection in e-commerce by providing legal services and judicial support. Anhui Huaibei Intermediate People’s Court, on the basis of the Framework Agreement for Coordinated Judicial Protection of Intellectual Property in Huaihai Economic Zone, built itself into a model for inter-provincial coordinated IP protection. Liaoning High People’s Court, Liaoning Provincial People’s Procuratorate and Liaoning Provincial Public Security Department jointly issued the Minutes of the Conference on Several Issues concerning the Handling of Criminal Cases of Intellectual Property Infringement Cases, which standardized law enforcement and adjudication, comprehensively enhanced the crackdown of IP crimes. Shandong Qingdao Intermediate People’s Court and Qingdao Municipal People’s Procuratorate signed the Framework Agreement on the Connection and Cooperation between the Court and Procuratorate on Intellectual Property Protection to resolve jurisdiction issues and advance coordination. Courts in Shanxi, Jilin, Hunan, Guangxi, Yunnan and other regions and provinces were actively organized the delivery of laws to enterprises and communities, conducted public court hearings and law enforcement activities, implemented “whoever enforces the law is responsible for promoting the law”： enhanced judicial disclosure, and raised the general public’s awareness of the importance of respecting and protecting IP rights.

• Impartial Trial of Foreign-related Cases and
  Actively Engaged in International Cooperation

People’s courts have adhered to coordinate efforts to advance domestic and international rule of law, equally safeguarded the legitimate rights and interests of Chinese and foreign parties and all types of market entities in accordance with the law, maintaining the market order of fair competition, and serving the new development paradigm featuring dual circulation, in which domestic and overseas markets reinforce each other with the domestic market as the mainstay. The courts actively engaged in international cooperation in IPRs protection, and contributed China’s judicial wisdom to global IP governance.

(I) Equally Protecting the Legitimate Rights and Interests of Chinese and Foreign litigants

By fairly adjudicating foreign-related IP cases and properly resolving major IP disputes relating to international trade, people’s courts implemented the TRIPs Agreement, the Madrid Agreement, the Berne Convention and other international treaties ratified and acceded to by China. The courts actively promoted an open, fair; just and non-discriminatory environment for science and technology development, as well as a market-oriented, law-based and international business environment, which demonstrates China’s confidence and determination of protection innovation, openness and inclusiveness. The SPC ruled in favour of the full amount of RMB 20 million in damages claimed by the foreign right holder in the case of patent infringement for the “locking intramedullary nail” invention based on the refusal of submitting account books from the infringer. Therefore, the legitimate rights and interests of the foreign litigants were fully protected. China has increasingly become a reliable and trustworthy choice for international IP litigation.

(II) Participating in International Cooperation in IPRs Protection

People’s courts maintained a high level of international judicial exchanges and cooperation, actively participated in global IP governance through the World Intellectual Property Organization (WIPO), and promoted the development of a more just and rational global IP governance system. The SPC hosted the Sino-European Forum on the Comparison of Intellectual Property Litigation Systems, participated in international conferences such as the 7 ^th BRICS International Competition Conference, the 18^th Shanghai International Intellectual Property Forum, the 2 ^nd International Symposium on Judicial Protection of Intellectual Property Rights, the 2021 WIPO Intellectual Property Judges Forum, the China-EU Judicial Forum Seminar on Standard Essential Patents, the International Association for the Protection of Intellectual Property (AIPPI) China Youth IP Seminar. The SPC also held an online exchange with the UK IPR Enterprise Court and co-wrote the WIPO Global Judicial Guide to Patent Case Management. Chinese courts have actively promoted China’s voice, told the story of China’s legal protection of IPRs, and contributed Chinese wisdom to the global IP governance system. Shanghai High People’s Court established the IP Innovation Award after signing a Memorandum of Understanding with the WIPO Arbitration and Mediation Centre.

• Strengthening Capacity Building for Judges to
  Serve and Guarantee Fairness

In 2021, people’s courts concentrated their efforts on developing an IP trial team capable of meeting the demands of a new era. The courts conducted an in-depth research and education on the Party’s history, as well as team education and rectification, adhered to Party Building in order to promote team building and trials, strengthened political construction, developed political loyalty, and increased the IP trial team’s awareness and ability to serve the overall situation. Professional training and judge selection were strengthened, and the mechanism for IP judge reservation and selection was also improved. The courts sought to develop an IP trial team that was politically committed, cognizant of the broader context, well-versed in the law, knowledgeable about technology, and with an international perspective.

(I) Carrying out the In-depth Education of CPC’s History

The year 2021 marks the 100^th anniversary of the founding of the CPC. People’s courts diligently implemented the Party Central Committee’s major decisions, conducted an in-depth research and implementation of the spirits of General Secretary Xi Jinping’s important speeches on the Mobilization meeting of the study and education of the Party’s history and delivered on July 1, 2021, and continuously strengthened their understanding of the spirit of the 19^th CPC Central Committee’s Sixth Plenary Session, focusing on promoting Party history learning through the education with high standards and high quality, with the core of learning history to understand the reasoning, boost self-confidence, respect morality, and promote practice. At all levels, people’s courts used the “I do practical work for the public” campaign as a powerful tool to exercise their judicial functions fully and to meet the public’s judicial needs for IP protection. The SPC organized seminars on issues concerning the copyright infringement in the use of other people’s works on university campus networks, with the goal of establishing a communication channel and promoting consensus among education authorities, video companies, and research universities to resolve disputes.

(II) Carrying out Education and Rectification

By resolutely implementing the spirits of important instructions on the education and rectification of political and legal team elaborated by General Secretary Xi Jinping as well as the decision-making and deployment of the Party Central Committee, people’s courts have educated and corrected their teams, resolutely completing the “four tasks” of building political loyalty, eliminating vicious members, resolving persistent and chronic problems, and promoting the spirit of heroism, in order to develop a reliable team with firm belief, responsibility, incorruptibility and people-centered awareness. People’s courts at all levels have worked to achieve the unification of delivering one-time judgment and ensuring long-lasting peace, and in consideration of practice of IP trials, improved the mechanism for the exercise and supervision of judicial power; and taken the achievements of rectification education to push forward high-quality development of IP trial in the new era.

• Improving Talent Training Model

People’s courts at all levels endeavored to enhance the professionalism of IP talents in handling new, complex and highly technical cases by cultivating their comprehensive trial abilities. The SPC actively coordinated the training of specialized IP talents nationwide by convening professional meetings and seminars, organizing professional training, improving judicial databases, publishing trial guidelines, carrying out human resource exchanges and other methods, the capability and quality of IP trial team were well promoted. Meantime, the court continued to increase support for the construction of court talent teams to the primary courts as well as the courts in the western region. Shaanxi High People’s Court, taking advantage of the abundant resources in scientific and technology education, signed a comprehensive strategic cooperation agreement with Northwest University and Xi’an Jiaotong University, and built court-university cooperation platforms such as the Intellectual Property Case Study Center. High People’s Courts in Jiangxi, Hubei, Gansu and other regions and provinces gave professional training courses on IP trial for the judges, judge assistants and clerks specialized in IP adjudication.

Closing Remarks

The year of 2022 is of great significance for starting the new journey to build China into a modern socialist country in all respects and achieve the Second Centenary Goal. Facing new developments and tasks, people’s courts at all levels must follow the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era and implement Xi Jinping Thought on the Rule of Law. The courts should fully act on the guiding principles from the Party’s 19th National Congress and the plenary sessions of the 19th Party Central Committee. The courts should acquire a deep understanding of the decisive significance of the establishment of both Comrade Xi Jinping’s core position on the Party Central Committee and in the Party as a whole and the guiding role of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, and boost our consciousness of the need to maintain political integrity, think in big-picture terms, follow the leadership core, and keep in alignment with the central Party leadership. The courts should stay confident in the path, the theory, the system, and the culture of socialism with Chinese characteristics. The courts should firmly uphold Comrade Xi Jinping’s core position on the Party Central Committee and in the Party as a whole and uphold the Central Committee’s authority and its centralized, unified leadership. The courts should carry forward the great founding spirit of the Party, remaining true to our original aspiration and keeping our mission firmly in mind. The courts will closely follow the requirements of “standing grounded in the new development stage, applying the new development philosophy in full, creating a new pattern of development, and promoting high- quality development”. The courts should firmly establish the concept of IP protection as a means of protecting innervation, and comprehensively deepen the reform and innovation in the field of IP adjudication. What the courts have gained from the initiatives to study the history of the CPC and the team education and rectification will be consolidated. All of us in the Courts will strengthen our role in IP trials, enhancing their quality, efficiency, and judicial credibility, and optimizing the rule of law environment conducive to innovation, creativity, and entrepreneurship. Efforts will be taken to increase the international influence of China’s IPR judiciary, as well as provide judicial services and a guarantee for China to become a major player in IPRs. These efforts will enable the courts to pave the way for a successful 20 th National Party Congress.