The Opinions provided a series of guiding opinions on the key issues and tough issues in the judgment of 16 varieties of intellectual property cases, including the cases concerning patents, trademarks, copyrights, trade secrets, plant varieties, intellectual properties in special fields, unfair competitions, monopolies, intellectual property contracts, pre-litigation injunctions, authorization and confirmation of IP rights, IP related administrative cases, IP related criminal cases, trial supervision for IP cases, IP related enforcement cases, foreign-related intellectual property cases and etc. The highlights are summarized as follows:

1.The principle of full damage liability shall be applied in IP litigation, and at the same time, punitive damages shall also be appropriately adopted to some extent.

2.The Opinions give definite supports to defenses of “prior rights” and “fair use” in trademark and unfair competition cases, and “prior use”, “prior art”, “estoppel” and “fair use” in patent cases. The Opinions also hold supportive attitudes towards “non-infringement confirmation action” and “damage claims against misused litigation”.

3.The Opinions specify the influence of the distinctiveness and well-known status of a trademark to its exclusive right, and that the cross-class protection for a well-known mark shall be granted under the principle of “reasonably appropriate”.

4.The Opinions encourage courts to accept new type IP cases, such as trade name cases, trade dress cases and domain name related cases.

5.The courts shall adhere to the principles of good-faith, fair competition and protecting prior rights when handling IP disputes.

6.The Opinions clearly stipulate that the Anti Unfair Competition Law be applied on the premise that one party violates recognized business standard and common criteria.

7.The Opinions clearly provide that pre-litigation injunction generally applies to trademark infringement cases and copyright infringement cases, but shall be used prudently in patent cases.

8.The Opinions define the respective emphasis of courts and administrative authorities in IP related administrative litigations.

9.Criminal responsibility can be imposed if the party refuses to comply with the IP related judgment or order.

10.The Opinions expect to unify the division of work in handling authorization and confirmation cases of IP rights, to study the transfer of patent invalidation trial and trademark review organs to quasi-judicial bodies, and to promote the revision of relevant laws.

11.Litigation system including judicial authentication, expert witness, and technical investigation shall be established and improved. The Opinions encourage that the qualified courts shall explore effective methods and measures on technical investigation when trialing technology related cases, such as patent cases.

12.The jurisdictions of special types of cases, such as monopoly cases and foreign related well-known trademark recognition cases shall be appropriately centralized.

Mr. Fu pointed out that China has established a legal system for trademark protection to adapt to the situation of China and international rules and practices. To solve new problems arised in trademark field, the 3rd amendment of China Trademark Law is put on the agenda. So far China has acceded six international conventions or treaties making the trademark protection in China more internationalized.

The Plan has two parts. The first part is about the key works, mainly including improving the IPR legal environment, administrative enforcement, and promotion and education, and taking active measures to deal with international financial crisis.

The second part is about concrete measures, which are in line with the nine aspects proposed in the National IPR Strategy Outline, namely, boosting IPR innovation ability, encouraging IPR’s transformation and application, expediting construction of IPR legal system, raising the level of IPR law enforcement, strengthening IPR administration, developing IPR agency service, fostering IPR talents team development, improving IPR cultural construction, expending international IPR communication and cooperation. There are 240 concrete measures. Meanwhile, the main enforcement departments are also designated in the measures to ensure effective implementation.

AICs all over the country pay more attention to protection of foreign trademarks on the goods of clothing, cosmetics and etc., inspect marketplaces, foreign brand franchised stores, commodity wholesale and retail markets regularly, crack down on various kinds of activities infringing foreign trademarks, strongly protect legal rights of foreign trademark owners, and effectively improve the investment environment.

According to the statistics, the foreign trademark passing-off cases investigated and handled continue to account for a majority of the total cases related to foreign trademarks.

The top five areas where foreign trademark infringing cases were investigated and handled, remain unchanged, i.e. Zhejiang Province, Guangdong Province, Shanghai, Fujian Province and Beijing, which account for 27.74%, 22.29%, 18.96%, 11.42% and 6.91% of the total amount of foreign trademark cases respectively.

The 19 awarded units are mainly from law enforcement departments as Customs, public security, people’s procuratorate and court. They were chosen by company members of the Quality Brand Protection Committee (QBPC) under the China Association of Foreign-Invested Enterprises in four aspects of criminal litigation, trademark infringement, Customs IPR border protection and other non-criminal litigation cases.

QBPC was established in March 2000. So far it has 182 company members, most of which are the Top 500 companies in the world. The total investment of its members in China has exceeded US$70 billion.

According to the agreement reached by the two parties, Schneider shall pay the compensation, which is about half of the claimed damage of 330 million Yuan, in 15 days after the judge-made settlement agreement enters into force. The two parties also reached a series of global reconciliation plans.

The Chief Justice of the High Court of Zhejiang Province, Qi Qi, announced: “The two parties will not have any more disputes on the case after the agreement is signed and fulfilled. After review of the agreement, the Court concludes that the agreement complies with the relevant provisions of laws and confirms the agreement.”

In August of 2006, Chint filed a lawsuit, alleging that five products, from the sales of which Schneider had earned more than 880 million Yuan, infringe a patent right for utility model of Chint. Chint claimed a compensation of 330 million Yuan, which is the largest amount so far among all the intellectual property cases in China. The case is called the “No.1 Patent Litigation Case in China”.

In the course, Shanghai Pudong Intellectual Property Center lectured on intellectual property management and financial aiding policy for patent applications. Mr. LI Wenhong, a layer from Unitalen Attorneys at Law with many years of experience in patent matters, delivered a lecture vividly on topics such as “what’s the use of a patent?”, “what is a patent”, “how to obtain a patent?”, “common mistakes and what should be paid attention to in patent management” and “emergency of patent management” and so on by citing particular cases. The training course got very positive echoes from the trainees.

Unitalen has been cooperating excellently with Shanghai Pudong Intellectual Property Center for a long time and is dedicated to intellectual property training. All the training courses are delivered by experienced lawyers or attorneys from Unitalen, and focused on topics on trademarks and patents meeting requirements of enterprises and guiding actual practices. The training courses take a form of forum including sharing speeches, and are oriented to a variety of enterprises. The intellectual property training course series becomes popular among more and more enterprises with the topics being more and more focusing.