News & Cases from China: May 2019
“皇冠丹麦曲奇”的出品方丹麦丹尼诗特色食品有限公司、经销商尤益嘉（上海）食品商贸有限公司（以下简称“原告”）因认为 “丹麦蓝罐曲奇”等产品1. 对其历史进行虚假宣传，在宣传词中出现“百年历史” “皇室经典”等词，让消费者误认为“丹麦蓝罐曲奇”百年来均属于皇室御用品牌，而事实上其于2009年才获得丹麦皇室御用认证。2. 对其质量存在虚假宣传，宣传词称其使用“百年配方”，关于保质期和净含量的宣传与产品参数存在不一致。3. 宣传中使用极限用词，在宣传中使用“顶级曲奇大师”、“送礼首选”、“聚会最佳拍档”等极限用语。4. 对曲奇产地存在虚假宣传，“丹麦蓝罐曲奇”的蓝罐礼盒装（赠送咖啡）产品正面包装上印有“原产国 丹麦”，但咖啡产地却为越南。原告遂将“丹麦蓝罐曲奇”的生产商、进口商及经销商以不正当竞争为诉至海淀法院，并索赔3000万元。
Danisa Sues Kjeldsens for Unfair Competition
‘Danisa Butter Cookies’ has brought an unfair competition action in the People’s Court of Haidian District, Beijing Municipality, against six related Kjeldsens Butter Cookies companies, seeking damages of 30 million yuan (approx. US$ 4,360,000).
According to a statement made by ‘Danisa Butter Cookies’ and its distributor, Kjeldsens had engaged in false promotion, and used misleading words such as “Hundred years of history” and “Royal Classics”, leading consumers to believe, mistakenly, that the product has been a royal brand for more than 100 years. In fact, Kjeldsens obtained royal certification only in 2009.
The Plaintiff further claimed that Kjeldsens had used descriptions prohibited by Advertising Law, such as “Top Cookie master” and false statements of origin. The Kjeldsens product is packaged in a blue can with an indication that coffee used in the product originates form Denmark, whereas in fact it originates from Vietnam.
The case is proceeding.
Beijing Internet Court Rules on First Case relating to Copyright in AI-generated Work
Beijing Film Law Firm brought a copyright infringement action against Beijing Baidu Internet News Technology Co., Ltd. (‘Baidu’) in the Beijing Internet Court, claiming that Baidu had violated its right of authorship, right to preserve the integrity of works and right of dissemination of works via information networks. The work in question was an AI generated work.
The Beijing Internet Court found at first instance that an AI generated work does not constitute a ‘work’ for the purposes of Copyright Law; however, the software used to generate the work has been created by developers and investors should be entitled to some form of protection. Further, the work in question contained written material that was not AI created; that is clearly capable of protection as a literary work.. The Court held that Baidu had infringed and ordered it to compensate the Plaintiff for economic loss and reasonable costs totaling 1560 yuan (approx. US$226.68).
This case is the first time a Chinese court has dealt with the issue of copyright protection in relation to content generated intelligently by computer software.
The main issue in the case was whether content generated intelligently by computer software can constitute a ‘work’ for the purposes of the Copyright Law. The Beijing Internet Court has held that, according to the current law, to qualify for copyright protection, a work must be created by a natural person or persons. Artificially generated content cannot satisfy that requirement, so is not capable of copyright protection.
Although the content generated by computer software does not constitute a copyright work, it does not follow that the public is free to use the content. The Court pointed out that material generated by computer software relies on the input of developers and noted that investors should receive some form of protection.
Trade mark Infringement Appeal decided against Chanel
Chanel claimed that goods being sold by a jewellery store operated by the Defendant, Ye, were infringing its right to the exclusive use of registered trade mark, G1189929, (the ‘double C’ logo). It brought a trade mark infringement action in the Haizhu District People’s Court of Guangzhou, Guangdong Province.
The Court found, at first instance, that Ye had infringed the trademark and ordered him to compensate Chanel for economic loss in the sum of 60,000 yuan (approx. US$ 8718.37). Ye appealed to the Guangzhou Intellectual Property Court, which has recently issued a second-instance judgment, finding that the evidence provided was not sufficient to establish infringement
It has been reported that before the first instance hearing, the former Haizhu District Administration for Industry and Commerce of Guangzhou City, Guangdong Province, had imposed a fine of 80,000 yuan (approx. US$11624.50) on Ye for sale of the allegedly infringing goods, and that Ye has already paid the fine. He has not to date filed a review or lawsuit in relation to the fine.
China's Intellectual Property Protection and Business Environment New Developments Report (2018) Released
On 15 May, the Office of the National Leading Group on the Fight against IPR Infringement and Counterfeiting issued its “Report on the Latest Development in IPR Protection and Business Environment in China (2018)”.
Administrative law enforcement and judicial protection for IP was significantly enhanced during the year. Administrative law enforcers nationwide investigated and handled 215,000 IPR and counterfeiting cases, among which 77,000 were patent infringement cases, 31,000 trademark-related violation cases, and over 2,500 copyright infringement and piracy cases.
The Customs system investigated and confiscated a total of 47,200 batches of exported and imported IPR infringing goods in total, containing infringing goods worth 24.8 million. The public security authorities dealt successfully with over 19,000 cases of IPR infringement and counterfeiting. The procurators approved the arrest of 5,627 persons involved in 3,306 criminal cases of IPR infringement. The number of concluded cases at the courts nationwide was 320,000, up 41.6% on the previous year.