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52 Guiding Cases: 8 on IP and Unfair Competition

Since 2011, the Supreme People’s Court of China has issued 52 Guiding Cases (“GCs”). The court did not issue any GCs on IP or unfair competition until 2013 Q4 and 2014 Q2, respectively.  Apparently triggered by its growing confidence in using GCs as a tool to provide more guidance, the court just issued another 5 GCs covering these two important areas (see Chart 1).

Chart 1:

Issue 04 Chart 3 ENGLISH

 

The “Main Points of the Adjudication” sections for Guiding Case Nos. 20, 29, and 30—the text prepared by the Supreme People’s Court to help subsequent courts understand the GCs and how to “refer to” them—read as follows:

Guiding Case No. 20, Shenzhen Siruiman Fine Chemicals Co., Ltd. v. Shenzhen Kengzi Water Supply Co., Ltd. and Shenzhen Kangtailan Water Treatment Equipment Co., Ltd., An Invention Patent Infringement Dispute

Where the Patent Law does not prohibit the manufacture, sale, and importation of an alleged patent-infringing product within the provisional protection period, which begins after the invention patent application is published and ends when the patent is granted, the subsequent use, offer for sale, and sale [of the product] are, despite the lack of a license from the patentee, not regarded as infringements of the patent.  But the patentee may, in accordance with law, demand that the entity or individual who exploits the invention within the provisional protection period pay an appropriate fee.

Guiding Case No. 29, Tianjin China Youth Travel Service v. Tianjin Guoqing International Travel Agency, A Dispute over an Unauthorized Use of Another Enterprise’s Name

  1. An abbreviated enterprise name that has been widely used externally by an enterprise for a long period of time, that has a certain degree of market visibility and is known to the relevant public, and that actually already functions as a trade name, may be regarded as an enterprise name and [thus] be protected [under law].
  2. Where, without authorization, [a business operator] uses another’s abbreviated enterprise name, which actually already functions as a trade name, as an Internet bid-for-ranking keyword in business activities, causing the relevant public to be confused and to misidentify [the enterprise], [the unauthorized use of the abbreviated enterprise name] is an act of unfair competition.

 

Guiding Case No. 30, LAN Jianjun and Hangzhou Suremoov Automotive Technology Company Limited v. Tianjin Xiaomuzhi Automobile Maintenance and Repair Services Co., Ltd. et al., A Trademark Infringement and Unfair Competition Dispute

  1. Whether or not a business operator has [carried out] an act that exceeds [its] legal business scope and violates administrative licensing laws and regulations does not affect its exercise, in accordance with law, of [its] civil rights to stop trademark infringement and unfair competition.
  2. The [coverage of] the anti-unfair competition law is not limited to business operators having direct competitive relationships [amongst themselves] nor requires them to engage in the same industry. Where the business operators have indirect competitive relationships and the party [carrying out] the act [in question] violates the provisions of the anti-unfair competition law and adversely affects the legal rights and interests of the other business operators, [the act] should also be determined to be an act of unfair competition.

 

The full-text translations, including the “Main Points of the Adjudication” sections, of the other 5 GCs on IP and unfair competition are currently being prepared by Stanford Law School’s China Guiding Cases Project.

While we await final translation, please note the following new developments:

(1) For detailed analysis of the 52 GCs, see 

 

Untitled

 

(2) The inaugural Guiding Cases Seminar, Why China’s Guiding Cases Matter?, was held with tremendous success at Stanford Law School on April 22, 2015.  It featured an interactive panel discussion moderated by Yabo Lin, partner at Sidley Austin LLP’s Palo Alto office. Panelists included Dr. Mei Gechlik, founder and director of the CGCP, James McManis, Fellow of the International Academy of Trial Lawyers and Co-Chair of its China Program, and Jason Zuocheng Hao, former Director of the Civil Law Department of the Legislative Affairs Commission of the National People’s Congress in Beijing and current visiting scholar at Stanford Law School.  Missed the event? Check out the full video and event summary here!

 

(3) Pro Bono opportunities

Contact jcbeck@law.stanford.edu if interested in joining the CGCP’s growing and global pro bono network.  Opportunities are available for both individuals and law firms.

Post-Arbitration Challenges for Foreign Companies in China

Guiding Cases Nos. 33 and 37 are the first two Guiding Cases (“GCs”) released by the Supreme People’s Court of China that are related to arbitration. Both cases reveal challenges facing foreign parties after arbitration has concluded.

  1. Guiding Case No. 33: Cargill International S.A. received an arbitral award against a Chinese corporate group. According to the award, a member of the Chinese group had to mortgage its assets to Cargill as security for the repayment of the debt. In the end, however, these assets were transferred by the debtor to its affiliate companies. Despite the court’s determination that the related property transfer contracts were invalid, Cargill was not able to reach the debtor’s assets.Why not?
  2. Guiding Case No. 37: Shanghai Jwell Machinery Co., Ltd. (上海金纬机械制造有限公司) received an arbitral award against Retech Aktiengesellschaft, Switzerland. Jwell applied to the Lenzburg Court of the Swiss Confederation for the recognition and enforcement of the arbitral award, but to no avail. Later, Jwell discovered that Retech’s assets were in Shanghai and immediately applied to a court in Shanghai to “seal up” Retech’s assets. Retech raised an objection on the ground that Jwell’s application for enforcement had already exceeded the time limit set forth in the Civil Procedure Law of the People’s Republic of China. The court ruled against Retech. Why?

 

The China Guiding Cases Project (“CGCP”) finds these two GCs very interesting and believes that they provide lessons that can benefit all interested parties, especially foreign investors. We would like to collect more information to produce a piece of commentary. Help us unravel these two GCs by sending your insights to contactcgcp@law.stanford.edu (in the subject line, please use: Unravel GC33 and 37; in the body of your message, please let us know whether you want your contribution to remain anonymous if selected). In particular, we are looking for information, answers, and insights regarding the following issues:

  1. Why was Jwell’s application to the Lenzburg Court unsuccessful? Did Jwell appeal?
  2. The Supreme People’s Court used “译文由公设或宣誓之翻译员或外交或领事人员认证” (i.e., “the translation shall be certified by an official or sworn translator or by a diplomatic or consular agent”) in Guiding Case No. 37, rather than the text provided in the official Chinese text of the New York Convention (“译本应由公设或宣誓之翻译员或外交或领事人员认证之”; converted here from traditional Chinese characters). Why wasn’t this official Chinese text used in the GC?
  3. Guiding Case No. 37 refers to these two original rulings: (2009)沪高执复议字第2号执行裁定and(2008)沪一中执字第640-1民事裁定. We have the former. Do you have the latter?
  4. Guiding Case No. 33 also refers to(2007)闽民初字第37号民事判决. Do you have a copy?

 

For detailed discussion of GCs and their significance, please join our first Guiding Cases SeminarTM on April 22. Also, be sure to download free copies of the GCs from the CGCP website, including our latest products:

  1. Guiding Case 32:《张某某、金某危险驾驶案》(A certain ZHANG and a certain JIN, A Dangerous Driving Case)
  2. Guiding Case 33:《瑞士嘉吉国际公司诉福建金石制油有限公司等确认合同无效纠纷案》(Cargill International S.A. v. Fujian Jinshi Vegetable Oil Producing Co., Limited et al., A Dispute over Contracts Affirmed to be Invalid)
  3. Guiding Case 34:《李晓玲、李鹏裕申请执行厦门海洋实业(集团)股份有限公司、厦门海洋实业总公司执行复议案》(Application by LI Xiaoling and LI Pengyu for Enforcement against Xiamen Marine Industry (Group) Co., Ltd. and Xiamen Marine Industry Controlling Corporation, An Enforcement Reconsideration Case)
  4. Guiding Case 35:《广东龙正投资发展有限公司与广东景茂拍卖行有限公司委托拍卖执行复议案》(Guangdong Longzheng Investment Development Co., Ltd. and Guangdong Jingmao Auction Co., Ltd., An Enforcement Reconsideration Case on an Entrusted Auction)
  5. Guiding Case 36:《中投信用担保有限公司与海通证券股份有限公司等证券权益纠纷执行复议案》(Zhongtou Credit Guarantee Co., Ltd. and Haitong Securities Co., Ltd. et al., An Enforcement Reconsideration Case on a Dispute over the Rights and Interests in Securities)
  6. Guiding Case 37:《上海金纬机械制造有限公司与瑞士瑞泰克公司仲裁裁决执行复议案》(Shanghai Jwell Machinery Co., Ltd. and Retech Aktiengesellschaft, Switzerland, An Enforcement Reconsideration Case on an Arbitral Award)

 

 

 

13 NEW GUIDING CASES AND CGCP RECRUITING

During the holiday season, the Supreme People’s Court (“SPC”) of China gave us a pleasant surprise by releasing 13 new Guiding Cases (“GCs”) (See http://cgc.law.stanford.edu/guiding-cases/)! Some of the characteristics are as follows:

–       TWO foreign-related GCs: Guiding Case No. 33 was a dispute over the validity of two contracts signed with a foreign company. Guiding Case No. 37 was an enforcement reconsideration case on an arbitral award.

–       SEVEN GCs whose original rulings/judgments were rendered by the SPC. This drastically increased the number of this type of GCs from two to nine.

–       MOST cases selected for release as GCs are about two years old, but the newest batch has two outliers: Guiding Case No. 38 (about 16 years old) and Guiding Case No. 41 (about 11 years old).

How to explain these trends? Please see Guiding Cases AnalyticsTM   (now also available in Chinese, 指导性案例分析TM) by clicking here.

In the past year, the CGCP has attracted approximately 4000 users and launched three brand new products: Guiding Cases AnalyticsTM, Guiding Cases SurveysTM , and Guiding Cases in PerspectiveTM. Beginning from February, we will publish subsequent cases that refer to Guiding Cases, along with our brief notes. The CGCP has a team of more than 150 volunteers around the world, but we need to hire a few experienced editors to sustain our high-quality work and to allow us to launch other useful products. We are running the project on a shoestring budget and asking you for your kind support. Please make a gift at https://makeagift.stanford.edu/give/home?mop=CC&gfty=G&pgnTPC=75&stp=212&gdso=5&tgso=6&cturl=close&olc=18125.

Please stay connected via LinkedIn, Twitter, Sina Weibo, and our mailing list: https://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject.

Finally, we are recruiting! We are looking for Type A (native English with Chinese fluency) and Type C (native English with excellent editorial skills). For more information, please visit http://cgc.law.stanford.edu/volunteer/.

Thank you for your support!

Guiding Cases Nos 27-31 available in English now!

The CGCP is pleased to release the English translations of Guiding Cases Nos 27-31:

  • 1. ZANG Jinquan et al., A Theft and Fraud Case, China Guiding Cases Project, English Guiding Case (EGC27), Oct. 20, 2014 (Express Edition),available at http://cgc.law.stanford.edu/guiding-cases/guiding-case-27.
  • 2. HU Kejin, A Case of a Refusal to Pay Remuneration, China Guiding Cases Project, English Guiding Case (EGC28), Oct. 20, 2014 (Express Edition), available at http://cgc.law.stanford.edu/guiding-cases/guiding-case-28.
  • 3. Tianjin China Youth Travel Service v. Tianjin Guoqing International Travel Agency, A Dispute over an Unauthorized Use of Another Enterprise’s Name, China Guiding Cases Project, English Guiding Case (EGC29), Oct. 20, 2014 (Express Edition), available athttp://cgc.law.stanford.edu/guiding-cases/guiding-case-29.
  • 4. LAN Jianjun and Hangzhou Suremoov Automotive Technology Company Limited v. Tianjin Xiaomuzhi Automobile Maintenance and Repair Services Co., Ltd. et al., A Trademark Infringement and Unfair Competition Dispute, China Guiding Cases Project, English Guiding Case (EGC30), Oct. 20, 2014 (Express Edition), available at http://cgc.law.stanford.edu/guiding-cases/guiding-case-30.
  • 5. Jiangsu Weilun Shipping Co., Ltd. v. Miranda Rose Limited, A Ship Collision Damages Dispute, China Guiding Cases Project, English Guiding Case (EGC31), Oct. 20, 2014 (Express Edition), available at http://cgc.law.stanford.edu/guiding-cases/guiding-case-31.

 

Please note that CGCP has also expanded to cover three other products: Guiding Cases in PerspectiveTMGuiding Cases AnalyticsTM, andGuiding Cases SurveysTM.

We welcome your contribution to the CGCP by submitting commentaries and/or becoming our volunteers.

In the meantime, please stay connected with us via LinkedIn, Twitter, Sina Weibo, and our mailing list: https://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject. You may also add us on WeChat by searching “slscgcp” or “斯坦福大学中国指导性案例项目,” or by scanning the QR code provided below.

Screen Shot 2014-10-20 at 11.14.59 AM

Thank you for your support!

 

 

 

CGCP: Surveys of Chinese Judges and more…

Over the summer, the CGCP has made great progress!  We are excited to launch two new products to complement our Guiding Cases AnalyticsTM:

  • 1.  Guiding Cases SurveysTM invites judges, lawyers, law professors, and law students to participate in surveys that analyze how Guiding Cases released by China’s Supreme People’s Court are perceived and used by legal actors.  Results of these surveys and their comparisons will help show legal actors’ changing attitudes towards Guiding Cases, and identify areas for improvement.  The first issue covers surveys of Chinese judges conducted in 2013 and 2014.
  •  2.  Guiding Cases in PerspectiveTM tracks the development of Guiding Cases (“GCs”) and analyzes related jurisprudence.  It examines, among other issues, how the Supreme People’s Court has transformed selected original judgments into their respective GCs, and explores the treatment of the GCs in subsequent cases.  The first set covers GC9, its original judgments, two subsequent cases, and CGCP annotations.

 

In addition, we are honored to receive two commentaries contributed by Judge Huang Huifang and Dr. Kristie Thomas.

 

We cannot sustain our good work without your financial support.  Please kindly make a giftat https://makeagift.stanford.edu/give/home?mop=CC&gfty=G&pgnTPC=75&stp=212&gdso=5&tgso=6&cturl=close&olc=18125 and stay connected via LinkedIn, Twitter, Sina Weibo, and our mailing list: https://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject.

Thank you for your support!

China’s New Guiding Cases on IP and anti-unfair competition

Summer is here but the China Guiding Cases Project (“CGCP”) is not resting!

NEW GUIDING CASES ARE AVAILABLE. The seventh batch of GCs was justreleased. This batch includes China’s first two GCs on anti-unfair competition law, one of which is the longest GC. This batch is unusual in that its GCs were not released on the same day (To see more analysis, please refer to Guiding Cases AnalyticsTM by clicking here).

NOW RECRUITING new CGCP Editors and CGCP Junior Fellows. We have different roles for Chinese and English native speakers. Knowledge of Chinese is preferred but not required. IT knowledge and website development skills are greatly valued. For more information,seehttps://cgc.law.stanford.edu/volunteer/.

SHARING OUR GOOD WORK. Thanks to many parties’ support, our director Mei Gechlikhas had the opportunities to speak about the CGCP and GCs at various institutions over the past several months. They include Princeton University, University of Pennsylvania, New York University, Georgetown University, Chinese University of Hong Kong, and the Stanford Club in Hong Kong.

PLEASE DONATE & “LIKE” US. We cannot sustain our good work without your financial support. Kindly make a giftat https://makeagift.stanford.edu/give/home?mop=CC&gfty=G&pgnTPC=75&stp=212&gdso=5&tgso=6&cturl=close&olc=18125 and stay connected with us  via LinkedIn, Twitter, Sina Weibo, and our mailing list: https://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject.

Thank you for your support!

The English translations of Guiding Cases Nos. 23- 25 are available now!

We are pleased to release the English translations of Guiding Cases Nos. 23 through 25. The cases are:

 

  • RONG Baoying v. WANG Yang and Alltrust Insurance Co., Ltd. Jiangyin Branch, A Motor Vehicle Traffic Accident Liability Dispute, CHINA GUIDING CASES PROJECTEnglish Guiding Case (EGC24), Apr. 4, 2014 (Express Edition), available at http://cgc.law.stanford.edu/guiding-cases/guiding-case-24.

 

  • Huatai Property & Casualty Insurance Co., Ltd. Beijing Branch v. LI Zhigui and Zhangjiakou Subbranch of Tianan Property Insurance Company Limited of China Hebei Provincial Branch, An Insurer’s Subrogation Right Dispute, CHINA GUIDING CASES PROJECTEnglish Guiding Case (EGC25), Apr. 4, 2014 (Express Edition), available athttp://cgc.law.stanford.edu/guiding-cases/guiding-case-25.

 

The above cases, together with Guiding Case No. 26, were included in the sixth and latest batch of Guiding Cases released by the Supreme People’s Court! The English translation of Guiding Case No. 26 and a related commentary were released by CGCP earlier.

We would also like to thank the World Justice Project for promoting our work: http://www.worldjusticeproject.org/opportunity-fund/china-guiding-cases-project-5.

Our good work would not have been possible without your help and support. To better deliver our products to enhance the understanding of China’s guiding cases system, we need your help to upgrade our website. If you like our products, please make a gift at https://makeagift.stanford.edu/give/home?mop=CC&gfty=G&pgnTPC=75&stp=212&gdso=5&tgso=6&cturl=close&olc=18125. Any amount of support is immensely appreciated!

To keep updated about our future products, please subscribe to our mailing list by visitinghttps://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject. You may also connect with us via LinkedInTwitter, andSina Weibo.

Thank you for your support!

First Guiding Case on Open Government Information and Related Commentary

We are pleased to release three new products:

  1. The English translation of Guiding Case No. 26, the first guiding case on open government information: LI Jianxiong v. Department of Transport of Guangdong Province, A Case About Open Government Information, China Guiding Cases Project, English Guiding Case (EGC26), Mar. 12, 2014 (Express Edition), available at http://cgc.law.stanford.edu/guiding-cases/guiding-case-26 .
  2. A Commentary:  Mei Gechlik and DAI Di, Guiding Case No. 26 and China’s Open Government Information System, China Guiding Cases Project, Mar. 12, 2014, available at http://cgc.law.stanford.edu/10-gechlik-and-dai  .
  3. A Chinese law summary on Foreign Investment Laws http://cgc.law.stanford.edu/english-law-summaries/foreign-investment-law/ .

Our recent release of the Guiding Cases AnalyticsTM has been gaining traction! Thank you! Guiding Cases AnalyticsTM analyzes trends in the Guiding Cases selected and released by China’s Supreme People’s Court and identifies important issues for further study.

We are also proud to be identified as an “expertise support group” by the United Nations Development Program.  Our good work would not have been possible without your help and support.  To better deliver our products to enhance the understanding of China’s guiding cases system, we need your help to upgrade our website.  If you like our products, please make a gift at https://makeagift.stanford.edu/give/home?mop=CC&gfty=G&pgnTPC=75&stp=212&gdso=5&tgso=6&cturl=close&olc=18125.  Any amount of support is immensely appreciated!

To keep updated about our future products, please subscribe to our mailing list by visiting https://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject.  You may also connect us via LinkedIn, Twitter, and Sina Weibo.

Thank you for your support!

CGCP launches the Guiding Cases Analytics!

We are excited to launch the Guiding Cases AnalyticsTM!

Guiding Cases AnalyticsTM analyzes trends in the Guiding Cases selected and released by China’s Supreme People’s Court and identifies important issues for further study. Expected to be an essential supplement to the qualitative analysis of cases, Guiding Cases AnalyticsTM will help deepen our understanding of China’s court system and case law.

The first round of quantitative analysis completed by Guiding Cases AnalyticsTM shows some interesting trends and issues. For instance, compared with other Guiding Cases, the first Guiding Case on patent law (No. 20) and the first Guiding Case on food safety law (No. 23) provide more detailed reasons. Most cases selected for release as Guiding Cases are about two years old, but the SPC selected two cases that were about five years old and released them as Guiding Cases No. 6 and No. 17. What explains these “anomalies”? What are the implications? To read more about our interesting findings, please visit: http://cgc.law.stanford.edu/guiding-cases-analytics/.

To keep updated about our future products, please subscribe to our mailing list by visiting https://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject. You may also connect with us via LinkedIn, Twitter, and Sina Weibo. For more information about the CGCP, please also visit http://blogs.law.stanford.edu/cgcp/.

We would also love to hear your feedback and comments about the CGCP! Please let us know how the CGCP has been doing by sending your views to contactcgcp@law.stanford.edu.

Thank you for your support!

China’s Supreme People’s Court just released four more Guiding Cases!

China’s Supreme People’s Court just released four more Guiding Cases:

This is different from the regular pattern of release (see below). The CGCP team is working arduously to provide timely translations!

Number of Guiding Cases Issued in Each Quarter:

number of GCs

Also, in a recent interview by the Reuters, CGCP Director, Dr. Mei Gechlik, commented on “arbitration courts” set up in Shanghai and Qianhai Free Trade Zones.

To keep updated about our future products, please subscribe to our mailing list by visiting https://mailman.stanford.edu/mailman/listinfo/chinaguidingcasesproject. You may also connect with us via LinkedIn, Twitter, and Sina Weibo. For more information about the CGCP, please also visit http://blogs.law.stanford.edu/cgcp/.

We would also love to hear your feedback and comments about the CGCP! Please let us know how the CGCP has been doing by sending your views to contactcgcp@law.stanford.edu.

Thank you for your support!