In July 2014, Unitalen Newsletter celebrated its 100^th issue!

Since its first issue in 2005, Unitalen Newsletter, with its consistent adherence and unique perspective, has introduced new laws and regulations, analyzed classic cases and provided professional advice to customers and the industry at home and abroad. Over the past nine years, Unitalen Newsletter worked as a bridge for both Chinese and foreign enterprises and organizations involved in intellectual property to exchange information. On the occasion of the 100^th issue, which is a new starting point, we will continue to focus on your needs and better Unitalen Newsletter，and Unitalen Newsletter will always be a necessary and useful partner by your side! And we take this opportunity to express our sincere thanks to our new and regular customers and readers who have been constantly giving us support, concern and love!

UNITALEN　ATTORNEYS　AT　LAW

To cope with the changes in Trademark Law as well as Regulations on Trademark Law Implementation, the revised Trademark Review and Adjudication Rules was improved and complemented correspondingly, responding to the frequent problems encountered in cases of trademark review and adjudication in recent years and the new need in practice.

In accordance with relevant provisions of the new trademark law, the Rules specifies the type of cases, distinguishes review of invalidation announcement from review of cancellation , clearly defines the proceeding scope for review ofregsitration rejection, determines 30 days as legal period for correction and three months as the period for additional evidence, and adds provisions on electronically submitting or delivering documents for review. According to the provisions of submitting documents for review in the Rules, the "public review" is revised to "oral proceeding".

The Rules also improves relevant review process, including: define settled cases as sole-examiner examination in order to improve proceeding efficiency;, clearly defines ways of correcting non-substantive errors to meet the objective needs; adds relevant provisions on reexamination for implementing court judgments by explicating that the collegial group shall be re-composed for timely retrial, and new evidence submitted by the parties can be taken in the reexamination process, etc. To further regulate the admissibility of evidence, the Rules clearly defines that no evidence should not be admissible without cross-examination.

The Rules specifies that when the client opposes the decision of rejecting trademark registration or objection ruling made by the Trademark Office before the implementation of new trademark law and applies to the Trademark Board for retrial, the procedural and substantive issues of the cases by the Board after implementation of the new Trademark Law apply the new law, except for the subject qualification issue in the opposition review; for the cases regarding invalidation announcement, review of invalidation announcement and retrial of cancellation accepted before the implementation and trialed after the implementation of the new law, the procedural issues apply to the new law and the substantive issues apply to the previous law. The cases of trademark review accepted before the implementation of the new law shall begin to calculate examinationperiod from May 1, 2014.

Phillips Bachtodd expressed his appreciation for achievements China has made in PCT. He said that China has made a series of progress in PCT system application, and China ranks third in international PCT patent applications in the world. He hoped that both sides will continue to expand exchanges in the field of PCT actively, and he also expected further cooperation in the future.

The Amendment describes that the Draft revises Clause 61 of Chapter 6 of the existing Copyright Law to Clause 90 of Chapter 8, with the contents revised in four aspects: integrating rights system, adjusting authorization mechanism and market trading rules, improving remedy measures and improving the text structure of the law.

It is reported that in order to change the current predicament where it is hard for a copyright holder to protect his rights and for a user to get license of works, this revision emphasizes the consistency of protecting the rights of the copyright holders and promoting widespread of works, establishing scientific, rational and standardized copyright authorization mechanism and transaction rules. To this end, the Draft adds requirements for registration of copyright and related rights, as well as rights registration in the contracting process of exclusive license contract and transfer contract. Meanwhile, for the particular occasion that the copyright holder cannot be found but its works shall still be used, the Draft adds the relevant provisions, which allow users to use works in digital form after applying to the relevant agencies and depositing fees for use. To make full use of collective management system of copyright, the Draft adds that the copyright collective management organization can carry out extended collective management of public dissemination of released music or audiovisual works by self-VOD system and other use of the work, which strengthens social oversight and government regulation of copyright collective management organizations.

First, it specifies "stopping the operator’s abuse of intellectual property right to eliminate or restrict competition, in order to protect competition and encourage innovation".

Second, it prohibits business parties from reaching monopoly agreement in the exercise of intellectual property.

Third, in addition to the principle prohibition of business parties’ abusing dominant market position in exercising intellectual property rights, it specifies specific circumstances of refusing licensing of intellectual property rights, the tied sale related to intellectual property rights and unreasonable restrictions related to intellectual property rights and so on.

Fourth, it specifies whether certain specific types of exercising intellectual property constitute the relevant monopoly, such as patent pools, patent exercise in the formulation and implementation of standards, behavior of copyright collective management organizations and abuse of warning letters of intellectual property infringement. These acts may constitute monopoly agreements and abuse of dominant market position, respectively or simultaneously, but mainly refers to the latter.

Fifth, it regulates the basis, principle and specific penalties for the industry and commerce authorities to enforce survey and punishment on the business parties’ exercise of intellectual property rights which constitutes elimination or restriction of competition.

The Regulation seeks public comment from June 11.

From the report, it can be witenssed that from 2000 to 2009, the high-tech fields of digital communications, computers, nanotechnology, semiconductors and telecommunications witnessed fastest-growing international patent applications in China. It is worth mentioning that among these international patent applications, patents filed by companies accounted for about seventy percent. The report shows that from 1970 to 2009, the proportion of international patent applications by Chinese enterprises grew rapidly, getting doubled every 10 years.

The plaintiff Visa International Service Association refused the Shang Ping Zi [2013] No.25384 made by the defendant-Trademark Review and Adjudication Board on July 29, 2013 on No. 3751956 "VISAMODEL" dispute trademark retrial decision, due to opposed trademark retrial administrative dispute, and launched judicial review of the administrative proceedings to Beijing First Intermediate People's Court.

Beijing First Intermediate People’s Court held that in this case the plaintiff claims its No. 138545 "VISA" trademark registered in Class 16- "printed bank cards, traveler's checks" and other commodities and No. 773149 VISA trademark registered in Class 36-"credit and debit card services, traveler's check services" constitute well-known trademarks. According to the facts found in the present case, the evidence submitted by the plaintiff proved that the above-said trademarks had significant impact on the majority of consumers in China and were well-known to the public through massive and continuous promotion and adaptability before the date of application for registration of the opposed trademark, which has reached the level of well-known and constituted well-known trademark. The opposed trademark completely includes the above well-known trademarks, similar in the formulation and pronunciation of letters. In addition, with China's economic development, credit card payments, online payments and overseas credit card payments have become an important part of the circulation of commodities, and have gradually replaced the traditional form of cash payments, becoming one of the most common patterns of consumption. The clothing designated for the use of the opposed trademark are people's daily wear products, while the plaintiff's well-known trademark was registered for use in the "printed bank cards, travelers' checks' and 'credit and debit card services, traveler’s check services", the two trademarks have close ties in the consumer groups, and consumers may mistake that the goods bearing opposed trademark are from the plaintiff or its affiliates at credit card spending, thus misleading the relevant public, which may harm the interests of the plaintiff. Therefore, the application for registration of the opposed trademark violated provisions in Clause 2 of Article 13 of the Trademark Law and the relevant identification of the defendant was wrong, which shall be corrected by law.

Beijing First Intermediate People's Court ultimately concluded that No. 25384 decision by the defendant shall be revoked while it was wrong in terms of both fact finding and application of law.