In 2010 China will keep on enforcing trademark strategy. With the implementation of SAIC’s Program on Improving Trademark Work in China to International Level, the trademark work in 2010 will present the following highlights:

Trademark legislation work will be further improved;

Trademark examination duration will be shortened to one year;

The backlog of trademark opposition cases is likely to be solved;

The Expo trademarks will become focus of trademark protection;

The registrations of agricultural trademarks and geographical indications will increase;

Fabricated litigations aiming at creating well-known trademark will be restrained;

The trademark agency marks will be better regulated;

The trademark pledge words will increase;

The progress of trademark informatization will speed up.

As of today, the Bureau of Shanghai World Expo Coordination has recorded 61 signs of the World Expo at Trademark Office and 56 signs at the General Administration of Customs. Trademark applications for the emblem and the mascot of the World Expo Shanghai China have been filed in all 45 classes of goods/services. The emblem of the World Expo Shanghai China has been filed for international registration in 39 countries/areas in the world, including the USA, Japan, Korea, Australia, Germany, France, Hong Kong, Macao, and etc.

By October 2009, the Bureau of Shanghai World Expo Coordination has received 257 applications from public for using the World Expo Shanghai signs. 80% of them have got license.

The Judicial Interpretation involves main issues concerning the application of law in the current trial practice of patent infringement cases, including: the determination of scope of protection of a patent for invention or utility model, principles for judgment of infringement of a patent for invention or utility model as well as design, the application of prior art defense and prior use right defense, the acceptance of a lawsuit for non-infringement declaration, and so on.

In 2009, the SIPO issued a total of 581,992 patents, up 41.2% over the previous year. Among them, 501,786 patents were issued to domestic applicants, representing 86.2% of the total and up 42.4% over the previous year, and 80,206 were issued to foreign applicants, representing 13.8% of the total and up 34.6% over the previous year. Among the issued patents from domestic applicants, there are 65,391 patents for invention, representing 13% and up 40.4% over the previous year. Among the issued patents from abroad, there are 63,098 patents for invention, representing 78.7% and up 33.9% over the previous year.

According to experts from the SIPO, in 2009 the patent applications and issued patents in China present the following characteristics. Firstly, the number of patent applications grew steadily. In the past year, patent applications underwent an increase of up to 17.9%, keeping an excellent increasing trend. Secondly, the distribution of domestic patent applications and issued patents was significantly optimized. In 2009, applications from domestic enterprises represent up to 44.9% of the total of applications from domestic applicants, up 3.7% than the last year, marking a continuing strengthening of the roles of enterprises in innovation; issued patents for invention from domestic applicants exceeded in number those from abroad for the first time; and among issued patents for invention, the percentage of those from domestic applicants is up to 50.9%, up 1.2% over the previous year and exceeding the percentage of those from abroad for the first time. Thirdly, the yearly number of issued patents increased rapidly and patent examination capacity was remarkably enhanced. In 2009, the SIPO issued over 580,000 patents, up 41.2% over the previous year, wherein issued patents for invention from domestic applicants increased by 40.4% over the previous year; the accumulative number of issued patents exceeded 3,000,000.

The Tort Liability Law also addresses the exemptions and undertaking forms of intellectual property infringement liability.

Article 36 of the Tort Liability Law elaborates on the forms and undertaking of tort liability of network user and network service provider respectively, which can be described as innovative and progressive. According to the provisions of Article 36, a network user or network service provider who infringes upon the civil right or interest of another person through network shall undertake the tort liability. It also clearly defines liability between the two forms, namely, “Where a network user commits a tort through the network services, the victim of the tort shall be entitled to notify the network service provider to take such necessary measures as deletion, block or disconnection. If, after being notified, the network service provider fails to take necessary measures in a timely manner, it shall be jointly and severally liable for any additional harm with the network user. Where a network service provider knows that a network user is infringing upon a civil right or interest of another person through its network services, and fails to take necessary measures, it shall be jointly and severally liable for any additional harm with the network user.”

The Plaintiff, TianShan company, asserted that it obtained a utility model patent on February 2, 2005 for the frying machine developed on its own. In 2009, it noticed that a kind of Robot automatic frying machine named “Meishi Meike”, which is produced by the defendant, TuoTian Company, without authorization from the patentee by use of its patented technology, was exhibited in the “8th Exhibition of Chinese present, largess and household appliance” and was sold in a shop as well. The plaintiff brought a lawsuit against Tuotian Company since it held that the defendant produced, used, sold and offered to sell the patented products without authorization from the plaintiff, and constituted infringement of its patent right.

As a lawyer for the defendant, TuoTian Company, after gathering and analyzing the relevant materials, YONG Liang held that the alleged infringing product actually did not fall within the scope of protection of the plaintiff’s patent, rather, it is closer to a piece of prior art which can be used freely, thus the defendant did not constitute infringement of the plaintiff’s patent right. Furthermore, the plaintiff could not prove that the defendant really sold the alleged infringing product, therefore, the damages of CNY 1,000, 000 claimed by the plaintiff had no factual and legal basis, and requested the court to reject the claims of the plaintiff.

The court held after investigation and assessment that although the defendant produced and sold the alleged infringing product of “Robot automatic frying machine”, the alleged infringing product lacked an essential technical feature of the patent, besides, it was different from the patented technology in other relevant essential technical features. Thus, the court made a decision that the defendant, Tuotian Company did not constitute infringement, and rejected the claims of the plaintiff, Tianshan Company.