In follow-up to the programme for the construction of intellectual property in the city of dalian (2022-2035) and the plan for the protection and application of intellectual property in the city of dalian's fourteenth five-year plan, an example of the city's intellectual property in 2022 (no. 1) has been published in order to continuously raise awareness of intellectual property rights throughout the society and to further enhance the level and capacity of intellectual property protection throughout the city。
Case i
Administrative decision on the practical new patent tort dispute
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The requester's crafts factory found that the department of handicrafts processing b produced and sold on the market, without its permission, the offerings of which were part of its patented product, in violation of its patent rights, and filed a request for processing with the municipal market supervision authority (mpra)。
It has been found that the patent in question is a functional new type of electronic switch and is in effect at the time of the request. According to on-site investigations by law enforcement officials and photographs provided by the petitioner, the requested person was in the process of producing rituals that were part of the electronic switch。
The claimant argued that there was a clear difference between the product and the patent in question, in terms of shape, size, function, manner of installation, perception of use, etc., and that it had been produced before the date of the patent application, i. E. That the claimant had a prior right of use and was therefore not liable for tort, but that the claimant had not provided evidence to that effect。
[processing results]
By contrast, the alleged tort products are not identical to only one of the technical characteristics of the patent in question, but are essentially the same by the same means to achieve essentially the same functions, achieve essentially the same technical effects, constitute the same technical characteristics and may be deemed to fall within the protection of the patent in question; and the claimant is unable to establish that it has a pre-use right by providing evidence. Under the relevant provisions of the patent act, the municipal market supervisory authority (mpra) ordered the requested person to immediately cease the violation and to destroy the equipment, moulds and moulds used to manufacture the product。
Case assessment
In this case, in order to establish the technical facts, the centre for the protection of intellectual property of the city of dalian was entrusted with the task of providing advisory opinions on the scope of protection of the patent in question, which, based on an expert comparison, concluded that the alleged tort products constituted the same technical characteristics as the minor differences in the patent in question. This case fully reflects the professional and efficient character of the administrative decision on patent tort disputes and provides a useful example for future trials of more specialized patenting of inventions and pragmatic new patent tort disputes. [source: darren city market supervisory authority (ipb)]
Case ii
Violations of the right to register trademarks in the “guizhou mao tai”
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“guizhou shao tai” is a registered trademark of goods such as wine (beverages) in class 33 by the limited liability company of the mao tai wine factory in guizhou, china. On the basis of consumer reports, law enforcement officials have opened a case against a supermarket suspected of selling counterfeit “guizhou shao tai”. Two bottles (53 per cent vol. 500ml) of “guizhou shack” were found to have been sold at the supermarket. By way of appearance, the trademark registrant identified the “guizhou chai” wine sold at the supermarket as being a counterfeit trademark product that did not correspond to the characteristics of the overpacking of products produced by his company. However, in view of the fact that the products identified by the manufacturer were not sold in their shop, the law enforcement officers were unable to locate the corresponding commodity information through a national accreditation public service platform through receipts from the supermarket and the purchase of organic codes and sample spray codes from the video-showed “guizhou shack”. In addition, the supermarket sold “guizhou shack” wine at a price of $2,900/bottle, with an illegal operation of $5,800. According to the supermarket operator, the above-mentioned “guizhou shack” wine was obtained at the exchange price of $2,000/bottle at the time, without a permit for the examination of the supplier and a food exit certificate or other qualification。
[processing results]
The sale by the supermarket of alcohol that infringes on the right to the exclusive use of registered trademarks and does not comply with the required licence for the examination of the supplier and the certificate or other certificate of qualification for the inspection of the food factory violates the relevant provisions of the trademark act and the food safety act. In accordance with the law, the authority in charge of the case ordered the supermarket to stop selling the goods in violation of the law, correct the violations and impose administrative penalties of $1,800 for warning, confiscation of the proceeds of the offence and a fine of $5,800。
Case assessment
On the basis of the findings of the evaluation, the evidence obtained from various angles, such as shopping receipts, videos provided by consumers and organic certification mechanisms, established the authenticity of the “guizhou shao tai” in question, upheld the legitimate rights and interests of the consumer, effectively combated fraudulent violations and served as a useful basis for future investigations of trademark violations. [source: darren city market supervisory authority (ipb)]
Case iii
Violations of the right to register trademarks in “kadia” case
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The “photo” is the registered trademark of catia international ltd. On the 14th class of jewellery. On the basis of a report trail, law enforcement officials inspected a jewellery store in the district and found in the counter nine gold rings, six platinum rings (pt990), and one gold au,750 with the same or similar pattern as “photograms”. The product was identified by the staff of the intellectual property agency of cardia international ltd., which identified eight of the gold rings and six of the platinum rings (pt990) as products with the same label as the “photograms” registered trademark, with differences in the quality, process and price of the material, and identified as counterfeit products that violated the registered trademark. At the same time, it was found that the parties were unable to provide a certificate of entry for the above-mentioned products, that there were no relevant records of the particular products in the accounts and that the source could not be identified; and that the product sales lists did not reflect the product's brand, trademark, style, and did not identify the details of the sale and the amount of the illicit business. According to the price of gold and platinum, the total value of the products suspected of violating the above is 30915. 59 yuan. The law enforcement authorities found that the sale of goods in violation of the right to register trademarks constituted an offence in violation of the provisions of the trademarks act。
[processing results]
In this case, under the provisions of the trademarks act, the guidance on the discretionary power to regulate administrative penalties for the supervision of markets of the general directorate of markets and the rules on the application of the discretionary authority for the regulation of administrative penalties for the supervision of markets in liaoning province, the administrative penalty was imposed on the person concerned “to order an immediate cessation of the violation, to melt the offending commodity and not to confiscate it; and to fine him $75,000 in full and to surrender it to the state treasury”。
Case assessment
In dealing with this case, the law enforcement authorities, taking due account of the effects of the epidemic, the difficulty of survival of micro-enterprises and the high value of precious metals, the smelting of the products involved, which both serve the purpose of destroying illicit commodities, and the use of the smelted gold as a feedstock, among other factors, have, in accordance with the principle of proportionality of penalties, comprehensive discretion, within the limits of statutory discretion and in conformity with the law, fully reflected the legislative principle of combining punishment and education, while actively promoting a good business environment while protecting intellectual property rights under the law. [source: market supervisory authority of the beneficiary district (ipa)]
Case iv
A dispute over the right to disseminate information about works
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The chinese association for music copyright (cra) is the collective authority responsible for the administration of copyright in music works, which collectively regulates the dissemination of information networks on the 82 musical works involved。
On company a's website, 82 song names can be searched and be ordered and downloaded with a bell. According to the description of the bell business on company a's website, this feature supports only group b users, and the monthly cost of the bell pack will be automatically deducted from the user's telephone charges at the beginning of each month, following the successful start of the lottery. In june 2018, group b liaoning entered into a contract with company a for the ratio of revenues from the bell's business information costs。
Ica has the right to disseminate information on the work of 82 songs and has filed numerous complaints against the violation of the rights of company a and local group b in various parts of the country。
[processing results]
The court ruled that the defendant, company a and company b liaoning, dalian, immediately ceased to violate their rights and jointly compensated the plaintiffs for the economic losses and reasonable expenses of defending their rights totalling $82,000。
Case assessment
This case actively explores the possibility of discouraging rights holders from using the means of litigation and regional differences to obtain substantial compensation to balance the interests of the parties. At present, there is a strong case of massive claims by intellectual property rights holders throughout the country, and where the same violations against the same subject of violation are prosecuted and economic losses claimed in different places, the total amount of compensation awarded may be too high for the economic value of the intellectual property. Accordingly, on the basis of the clarification that the amount claimed in the present case was limited to the violation of the dalian group b bell business, a combination of factors determined the amount awarded. (source: darlian city intermediate people's court)
Case v
A dispute over copyright for animated works
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Company a is the author of an animated d artwork. The copyright registry was conducted in 2008 and the completion date for the works was december 2003. Since 2008, the cartoon has received several national awards. In 2020, the plaintiff purchased several brands of toothbrushes in supermarket c of the wagroom city, as well as in several supermarkets in liaoning and shandong provinces. The brushes of the toothbrush mentioned above used animated image of the cartoon d, with the name of company b on the back of the toothbrush packaging. By contrast, the cartoon images used by the goods complained of are similar to those in cartoon d, in which company a has copyright。
[processing results]
The court ordered company b to cease immediately the production and sale of the tort goods and to compensate company a for its economic losses and reasonable expenses in defence of its rights totalling $500,000; and superc to cease immediately the sale of the tort goods and to compensate company a for the sum of $4,000。
Case assessment
This case is the first case of an intellectual property violation in which punitive damages were applied in the dalian region and provides a reference for future proceedings in similar cases. Company a has filed three lawsuits against company b for abuse, and company b has again committed the same violation after losing its case. Prior to the proceedings, the products of company b, which had been sued for abuse, had been sold in various shops in liaoning and shandong, with a certain geographical breadth and continued for many years. Company b should have financial books in accordance with the law, but should bear the adverse consequences of refusing to submit books relating to the proceeds of the offence. The present case is therefore subject to the aggravating circumstances of the tort and should have increased the civil liability of the tort, and the court ultimately upheld the plaintiff's claim for the application of punitive damages. (source: darlian city intermediate people's court)
