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In September the World Intellectual Property Organization (WIPO) launched WIPO Lex-Judgements, a new database providing free of charge access to leading judicial decisions related to IP law from around the world, which now has included over 400 documents from more than 10 countries. In addition, WIPO Lex-Judgement provides the information on judicial structure for IP disputes in all participating member states. WIPO Lex-Judgement is an enhancement to the offerings of WIPO Lex.

(Source: https://www.wipo.int/pressroom/en/articles/2020/article_0022.html)

Chinese President Xi Jinping held a video meeting in Beijing on the evening of September 14 with German Chancellor Angela Merkel, President of the European Council Charles Michel, and President of the European Commission Von der Lein. The leaders of China and Europe announced the formal signing of the China-EU Geographical Indications (GI) Agreement.

It is reported that the GI Agreement signed by China and the EU this time is the first comprehensive and high-level GI Agreement signed by China with foreign countries. According to this agreement, China and the EU will each have 275, totaling 550 well-known and well-known GIs to achieve large-scale mutual recognition.

It is worth noting that the GIs included in this agreement not only involve alcohol, tea, agricultural products, food, etc., but also GIs with Chinese characteristics such as rice paper and Shu brocade that represent traditional Chinese culture. It was unprecedented for EU to sign a GI agreement involving more products than alcohol, tea, agricultural products and food etc.

(Source: CNIPA website)

Recently, the China National Intellectual Property Administration (CNIPA) and the Hungarian Intellectual Property Office (HIPO) signed an upgraded version of the "Memorandum of Understanding between the CNIPA and the HIPO" through an exchange of letters.

According to the provisions of the memorandum of understanding, the scope of cooperation between the two offices has expanded from the field of patents to various IP rights including patents, trademarks, GIs and integrated circuit layout designs; meanwhile the memorandum further enhances the exchange and cooperation in public services, patent and trademark examination practices and examination standards.

(Source: CNIPA website)

Recently, the China National Intellectual Property Administration (CNIPA) and the Polish Patent Office (PPO) decided to jointly launch a pilot project of the “China-Poland Liaison Program”.

The two offices will each designate an IP liaison officer to provide consulting services on IP issues involved in Chinese companies' business in Poland and Polish companies in China, and to provide support for companies from both countries to obtain effective IP protection.

In the trial period, if Chinese companies have any relevant enquiries, they can contact the IP Liaison Officer of CNIPA. The contact information is as follows:

Contact: Zhao Qing

Email: zhaoqing@cnipa.gov.cn

Polish companies can contact the IP Liaison Officer of the Polish Patent Office for any relevant enquiries. The contact information is as follows:

Contact: Ms. Sylwia CAPIGA-WILEWSKA

Email: Sylwia.Capiga-Wilewska@uprp.gov.pl

The "China-Poland Liaison Mechanism" pilot project is expected to last for one year, from October 1, 2020 to September 30, 2021.

(Source: CNIPA website)

In response to the request for invalidation by Sogou, which is represented by Unitalen, against Baidu's No. ZL201110421574.2 invention patent titled "a method and client for prompting users to perform touch operations on mobile terminals", the China National Intellectual Property Administration (CNIPA) issued the invalidation decision, declaring all patent rights involved invalid.

Background:

The patent involved is one of the bases for Baidu's accusation made in 2016 that Sogou's input method has infringed on its 10 patents. After the failed attempt to invalidate Baidu’s patents for the first time, Sogou entrusted Unitalen to file for a second invalidation request against the patent involved. Unitalen invalidation litigation team, after a thorough research, decided on using the following evidences for invalidation:

Evidence 1: Notarized instruction video of "Fishing Master" Game V1.2 published on the Zhiyou forum

Evidence 2: China Taiwan Acer Corporation CN101349944A invention patent

Evidence 3: China Taiwan HTC Company US20090285383A1 invention patent

Evidence 4: China Taiwan VIA CN101819505A invention patent

Evidence 5: CN1855021A invention patent of Korea LG Electronics Co., Ltd.

Evidence 6: China Taiwan Inventec CN102073439A invention patent

Evidence 7: CN101697181A invention patent of Apple

Evidence 8: CN1472670A invention patent of Fujitsu Corporation

Evidence 9: US Microsoft Corporation CN102067079A invention patent

Evidence 10: Notarized "iPHONE 3GS Official Chinese Version User Guide Video" published on Youku, Sohu, and Tudou websites respectively

Evidence 11: CN101986251A invention patent of China Huawei

Based on the above-mentioned prior arts, Unitalen proposed the specific reasons for why the patent rights involved should be completely invalidated.

Highlights of the Judgement:

Highlight 1: Whether the evidences collected online shall be accepted

The collegiate panel believes that:

(1) In respect to online forums, factors such as the reliability, influence, and dissemination efficiency of the online information can better determine their credibility. Zhiyou Forum is a large third-party Android communication forum in the industry, with a large number of registered users and posts, it ranks high in traffic in China. The patentee’s claim that the forum’s affiliated company being involved in infringement or subject to administrative penalties caused its low credibility shall not be constituted;

(2) The software of Evidence 1 is downloaded and obtained by the requestor through legal means under the supervision and notarization of the notary public, and it is not a condition that should be excluded by the "Provisions on Evidence in Civil Litigation of the Supreme Court".

Highlight 2: Determination of the publicity of online evidence

The collegiate group believes:

For the purpose of increasing the number of replies, the poster setting the full text of the post to be visible only to the repliers is a common practice in online forums. This practice will not become an obstacle to the public's access to its content, and thus will not have substantial influence on the publicity of the content of the post.

Highlight 3: Determination of the time of disclosure of the online evidence

The collegiate group believes that:

According to the rule for modifying posts on the forum verified by the requester: that is, when modifying a published post, the last editing time will be displayed to prove that the time shown in Evidence 1 is the last edition made to the post, which can be regarded as the time of the content going public. The patentee’s claim that the forum rules published in 2011 may be different from that in 2018 is not accepted.

Highlight 4: Comment on inventiveness

The collegiate panel believes that:

First of all, the difference between Claim 1 and Evidence 3 lies in: 1) the content of the touch guidance is different, Claim 1 shows touch guidance animation and Evidence 3 shows touch operation guidance information; 2) Evidence 3 has disclosed one of the multiple touch prompt events defined in Claim 1;

Secondly, against the above-mentioned Difference 1, the "Fishing Master" game operation instruction video has disclosed the display of touch guidance information in the form of animation, and the animation stops playing upon the specific touch operation performed by the user, that is, it has disclosed Difference 1 and the function of this feature in Evidence 1 is the same as its function in the patent involved to solve the technical problems. Therefore, those skilled in the art have the motivation to incorporate Evidence 1 into Evidence 3 to provide touch guidance with lively animation;

In addition, in respect to Difference 2, Evidence 8 has disclosed the technical feature of displaying the corresponding guidance screens for varied prompt events such as new mail, incoming call, new message, etc., and the function of this feature in Evidence 8 is identical to that in the patent involved. Therefore, those skilled in the art have the motivation to integrate Evidence 8 into Evidence 3 to provide guidance for different events such as new mails and new messages.

Background:

Founded in 1983, the patentee Technogym is a world-class fitness equipment manufacturer headquartered in Italy with 14 branches around the world. The treadmill produced by it is known as the "Ferrari of fitness equipment" and is a top-notch fitness equipment.Technogym in this case as the plaintiff requested for the protection for a treadmill named "Skillmill".

Shandong Lande manufactures, sells, and promises to sell products of models "LD925-A", "LDT-925A" and those named as "925 large screen treadmill" and "925 small screen treadmill" for the purpose of production and operation, which are identical products to that in No. ZL201630060042.4 design patent of Technogym, with the overall appearance almost identical, infringing the design patent right involved.

Unitalen entrusted by Technogym filed a design patent infringement litigation against this with the Jinan Intermediate Court.

Court Decision:

The Jinan Intermediate Court ruled that Shandong Lande should immediately stop the infringement and compensate Technogym for economic losses. Shandong Lande refused to accept the judgment of the first instance and appealed to the Shandong Higher Court. However, the appeal was rejected as the Shandong Higher Court found it invalid and upheld the judgment of the first instance.

Court Judgement:

In this case, the product of the design patent involved is treadmill, which is identical to the alleged infringing product. Judging by the knowledge of and the perception by the general consumers, there is no substantial difference in the overall appearance between the design features of the alleged infringing design and the granted design, thus similarity is constituted, falling into the protection scope of the design patent right involved. According to the second paragraph of Article 11 of the Patent Law, Lande’s manufacturing, selling, and promising to sell products that infringe Technogym’s patent rights for production and business purposes constitutes infringement of the patent rights involved and shall stop the infringement and be liable for the indemnity of the economic losses. 　　

Summary:

French "Lafite" (translated as "拉菲" in Chinese) wines are well-known and favored by the market. In addition to the imitation of their red wine products, many infringers imitate the brand in food and/or beverage industries, and try to register the trademarks of "Lafite" and "拉菲" to legalize the infringement.

The defendant in this case is one of those infringers, which has registered two trademarks as in Class 29 for "jelly, soy milk, milk products" and Class 30 for "coffee, candy, oatmeal food, soy milk” and other products.

Entrusted by Lafite, Unitalen applied for invalidation of the two above-mentioned trademarks and won the case after invalidation procedures, as well as the litigations of first instance and second instance.

Courts’Judgement:

Both the Guangzhou IP Court of first instance and the Guangdong Higher Court of second instance found that:

(1) At the time of the alleged trademark infringement, No. 1122916 and No. 6186990 trademarks of Lafite (the plaintiff) were well-known domestically in wine and other products and were already well-known by the relevant public and should therefore be considered as well-known trademark;

(2) The alleged infringement marks were used on goods in Class 29 and Class 30, falling into duplication and imitation of the aforementioned two well-known trademarks, which has infringed on their exclusive right to use;

(3) The defendant had advertised the alleged infringing goods on the website using the alleged infringing domain name, and used them for e-commerce transactions, which can easily mislead the relevant public and harm the plaintiff’s interests. Therefore, it shall stop the infringement and bear the liability for the indemnity of economic losses.

(4) The defendant's defense of "legitimate source" cannot be established due to lack of evidence.

Based on the above mentioned, both the courts ordered the defendant to immediately stop the infringement, cancelled the domain names including www.lafeifood.com and www.拉非食品.com , and pay the indemnity of economic losses for a total of 3 million yuan within 10 days from the effective date of the judgement.

Typical Significance:

This is another typical case of prohibiting the use of a registered trademark registered after a prior well-known trademark.