China Law Blogs

Posts from blogs about Law in China

• Antimonopoly proceedings against Microsoft?Here’s an interesting bit of news from C…
• Funding available for US-China rule-of-law projectsHere’s an announcement from the US-China Business Council: The U.S.-China Legal Cooperation Fund invites proposals seeking grants to fund projects fostering rule of law in China, to be carried out jointly by American and Chinese not-for-profit participants. The Fund’s objective…
• The origin of ping pongI started this blog with the intention of making and keeping a promise to readers that I would blog only about Chinese law and not waste their time with self-indulgent ramblings on other topics. I’m going to go off topic…
• PRC’s Anti-Monopoly Law: Well-known Trademarks and Traditional Chinese Brands Are Part of National SecurityMr Steve Dickinson of the China Law Blog wrote an insightful article about Anti -Monopoly Law of the People’s Republic of China that became effective August 1, 2008.

  Article 31 Anti-Monopoly Law: Where national security is involved in the case of acquisition of domestic enterprises by foreign capital or the participation by foreign capital in the concentration of undertakings by other means, in addition to a review on the concentration in accordance with this Law, a review on national security shall also be conducted in accordance with the relevant laws and regulations.

  Mr Dickinson wrote: “The national security provision in the AML is taken from the 2006 Merger Guidelines. The AML provision is intended to follow the Guidelines, which provide for national security review at Article 12. Transactions that trigger review are those that affect “key industrial sectors,” the “national economy,” or that involve “well known trademarks or traditional brands.” “ Read more here.

  Mr Jonathan Palmer and Ms Susan Finder of Heller Ehrman agree on this point with Mr Dickinson: “The Guidelines are likely designed as an interim measure pending the promulgation of China’s first comprehensive competition legislation, currently titled the Anti-Monopoly Law (ALM).“ Read more here.

  Kalley Chen and Zhao Menghan of Kingwood PRC Lawyers wrote also about the merger & acquisition guidelines: “According to article 12 of M & A Regulation, “when foreign investors obtain an actual controlling equity interest through merger with or acquisition of a domestic enterprise which involves a key industry, involves factors which my impact State economic security or results in the possession of a well-known trademark or traditional Chinese brand of the domestic enterprise and the actual controlling rights of such equity interest and trademarks are transferred, then the parties shall report such information to MOFCOM (Ministry of Commerce IP Dragon).” Read more here.

  UPDATE:
  The EU Chamber of Commerce in China and the American Chamber of Commerce People’s Republic of China have welcomed the anti-monopoly law. However, the American Chamber is anxious how abuses of intellectual property will be defined before it will be considered a danger to the national security.

  Jason Subler wrote:

  “There is a concern,” Bush (Nathan Bush, an antitrust lawyer with O’Melveny & Myers in Beijing IP Dragon) said, “that compulsory licensing as a remedy for anticompetitive conduct or commitments to licensing as a term of approving mergers may be used as a back door to reinforce broader industrial policies aimed at promoting indigenous innovation or the emergence of Chinese national champions.”

  “Gregory Louvel, a lawyer with Norton Rose in Beijing, pointed to additional questions about merger reviews: whether authorities will do them quickly enough, and whether they will guard the confidential information that companies will need to hand over.

  “The European chamber urged authorities to publish implementing guidelines soon. It said in a statement that its members were concerned among other things about how provisions related to intellectual property rights would be applied.
  “Its current wording leaves room for unfair application of provisions against IP rights holders,” it said. “The chamber hopes that the above uncertainties will be clarified by the implementing guidelines to be issued as soon as possible.”“
  Read Mr Subler’s article for Reuters via the International Herald Tribune here.

• The Longlife Trademark For Taiwan’s Cigarettes is still not dead
  This morning I got this picture of Taiwanese cigarettes with the name Longlife. The picture is made by CH from Mobimania in Xiamen, China. First question. Is Longlife a trademarked brand in Taiwan? And what about China?

  If you type in “Longlife” in to the search engine of Taiwan’s Intellectual Property Office (TIPO) you will find that there actually are several trademarks for cigarettes with the mark Longlife, the trademark holder is Taiwan Tabacco and Liquor Corporation. The registrations were published in 2003 and the exclusive right period is until 2013.
  Of course it is pretty counterintuitive that a trademark for cigarettes with the name Longlife exists at all. If we look in Taiwan’s Trademark Act 2003 we can find arguments for objections against granting this trademark:

  Article 23: A trademark application shall be rejected if the proposed trademark satisfies any of the following:
  Article 23 (7) 10. One that violates against public order or good morals;
  Article 23 (7) 11. One that is likely to mislead the public with respect to the nature, quality, or place of origin of the designated goods or services;

  However, if one reads more about the brand, it becomes clear that the brand was already used in 1959, when most people didn’t know that cigarettes kill. If you read about the history of this brand, you learn a lot about the history of Taiwan. The brand was set up by the monopoly bureau: “The monopoly bureau chose Long Life as an auspicious name when the cigarette was first introduced in 1959, and never intended to suggest any health benefit, Mr. Chan said. ‘’No smoker will buy the cigarettes because they believe it will bring long life,‘’ he said.” The same monopoly bureau traded in opium, until the international pressure became too big in the 1930s. Read a great article about it by Keith Bradsher for the New York Times, here.

  In 2002 when Taiwan joined the World Trade Organisation it changed the structure of the monopoly bureau into a state-owned company called Taiwan Tabacco & Liquor (TTL) Corporation. So the Taiwan state has both an interest in public health issues and the sale of cigarettes at the same time. That is more yin and yang for most to stomach. The intention was in 2006, however, to privatise the TTL Corporation in 2007 (sole stakeholder was the Ministry of Finance). Whether this happened yet, I don’t know yet

  The TTL Corporation has great ideas about expansion to Asia, including China. : “TTL will first have to settle the issue of its trademark in China, which has been stalled since 1999. TTL applied to register two trademarks in the PRC under the name Taiwan Beer. Both of the applications were rejected by China’s trademark office. TTL appealed the decisions, but lost the appeals. China’s trademark law states that geographical names cannot be in a trademark. In spite of this, a number of Chinese products have geographical names, such as Tsingtao Beer. Lai said the name “Taiwan Beer” was used since the company was founded and has been registered in the United States and Europe.“ Read more in Annie Huang’s article for the Taiwan Journal here.

  So TTL Corporation has problems with getting a trademark for Taiwan Beer, but it is unclear whether TTL Corporation ran into troubles when it applied for Longlife trademarks in China. If we look at China’s Trademark Law 2001 the Trademark Office could have made objections based on article 10: The following signs shall not be used as trademarks:
  Article 10 (7): those having the nature of exaggeration and fraud in advertising goods; and
  Article 10 (8): those detrimental to socialist morals or customs, or having other unhealthy influences.

  Quote du jour
  The prolific Duncan Bucknell of the Global IP Strategy company Duncan Bucknell Company made the following Australian dry comment about Longlife’s trademark: “Well it’s certainly not descriptive.” Duncan gives his analysis about counterintuitive names as a trademark strategy on IP Thinktank, read here.

  Read more about TTL Corporation’s strategy to sell their cigarettes in China by Wang Men-lun for the Taipei Times here.

• Xiamen Cyberpolice Stealed the Logo of Microsoft’s Internet Explorer?CH of Mobimania pointed me to the Xiamen cyberpolice who uses the logo of E of Internet Explorer, the browser of of Microsoft. Did they get permission to use it? See their website here.
• Tianenmen Square Anniversary - Are things changing?http://news.bbc.co.uk/onthisday/hi/dates/stories/june/4/newsid_2496000/2496277.stm While never expecting to be able to see anything about Tianenmen Square on the internet here in China, we still try every now and again to see what we can pull up with a simple internet search. Also, the…
• China earthquake medical supplies list — EnglishDownload earthquake_needs_sichuan_china_21_may_2008.doc This is a Word document of the present needs list of medical supplies. This translation came from our office because we have been asked for an English language version. Funds might be sent in via the Red Cross,…
• Chinese Visa BacklogWe have been getting 20-30 phone calls per day about getting a Chinese visa. Each caller seems to have been told some different story about what can and can not be done. So, I’m writing to try and clarify things…
• China For Business Goes Beyond Beijing And Shanghai.
• Dudano, Mind Your China Manners. Or How To Make International Whoopee.
• Steve Dickinson To Speak On China Law And Economics At China Economic Review Breakfast. Shanghai, September 26.