China's State Administration for Market Regulation Releases Typical Cases of Intellectual Property Enforcement for 2021-Part 3

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The investigation and punishment of this case coincided with the booming sales of "Olympic masks." Law enforcement officers were keen to find clues to the violation and secure the evidence in a timely manner, and resolutely cracked down on the violations, which protected the interests of the owners of the Olympic symbols, and showed a good image of China's strict protection of Olympic intellectual property rights.

10. The Market Supervision Bureau of Fuling District, Chongqing Municipality investigated and punished the case of Fuling Mustard Group Co., Ltd. infringing the exclusive rights of the Olympic logo

The Fuling District Market Supervision Bureau received a tip that Chongqing Fuling Mustard Group Co., Ltd. was suspected of infringing the exclusive rights of the Olympic logo, and then conducted an investigation.

Upon investigation, in order to enhance the awareness of the enterprise, the parties concerned posted on their Weibo and website commercial publicity pictures with contents such as "Tokyo Olympic Games", the pictures not only containing their products and brand logos, but also containing contents such as "Cheer for Chinese Athletes, Jointly Look forward to the Olympic Games and Tokyo Olympic Games". By releasing the publicity pictures containing "Tokyo Olympic Games" and other contents on its microblog or website without the permission of the right holder of the Olympic symbols, the party concerned violated the provisions of Article 4 of the Regulation on the Protection of Olympic Symbols and infringed upon the exclusive right to the Olympic symbols. On November 12, 2021, the Market Supervision Bureau of Fuling District rendered an administrative penalty according to law, ordering the party concerned to immediately stop the infringement, and imposing a fine of 150,000 RMB.

According to the Regulation on the Protection of Olympic Symbols, the Olympic Five-ring Pattern Symbol, the Olympic Flag, the Olympic Motto, the Olympic Emblem, the Olympic Song and the exclusive names of Olympic Committee, Olympia, the Olympic Games and the abbreviations thereof, all belong to the Olympic Symbols and shall be protected according to law. No one may use the Olympic symbols for commercial purposes without the permission of the right owners of the Olympic symbols. The market supervision department shall severely investigate and punish the acts infringing upon the exclusive rights of the Olympic symbols to create a favorable environment for the successful holding of the Winter Olympics in China.

11. The Foshan Municipal Market Supervision Bureau of Guangdong Province investigated and dealt with the patent counterfeiting case of Foshan Aijia Sanitary Products Co., Ltd.

Foshan Municipal Market Supervision Bureau received tips that Foshan Aijia Sanitary Products Co., Ltd. was suspected of counterfeiting patents, and immediately investigated the parties involved.

After investigation, it was determined that the parties engaged in the production  of diapers. Although a company in Chongqing authorized the use of "a non-woven fabric and its production process" technology, the technology was in the substantive examination stage of the patent application at that time, and the patent right had not been granted. The parties did not perform special processing on the purchased non-woven fabrics, the whole processing process did not use the above-mentioned technologies of the Chongqing company, and the purchased non-woven fabrics did not use the above-mentioned technologies. As of the incident, the parties have delivered 130 boxes of Qipin brand diapers and 170 boxes of Anchen brand diapers to the Chongqing company. The two products were sold for 68,202.6 RMB. The actions of the parties violated the provisions of Article 84, Paragraph 1 of the Implementing Regulations of the Patent Law of the People's Republic of China, and constituted patent counterfeiting. On August 4, 2021, the Foshan Market Supervision Bureau issued an administrative penalty in accordance with the law, ordered the parties to make corrections immediately, removed the patent marks on the 216 boxes of products that were not sold in stock, confiscated 68,202.6 RMB of illegal gains, and imposed a fine of 68,202.6 RMB.

In this case, the parties used patent applications that have not yet been granted patent rights as patents for publicity, and did not use relevant technologies in the products, misleading consumers and obtaining illegitimate benefits. The investigation and punishment of this case deterred the act of counterfeiting patents, and helped guide and standardize the behavior of patent marking.

12. The Beijing Haidian District Market Supervision Bureau investigated and dealt with the case of Beijing Zhuoyi Huizhong Intellectual Property Agency Co., Ltd. disrupting the order of the trademark agency market by improper means

Haidian District Market Supervision Bureau received clues that Beijing Zhuoyi Huizhong Intellectual Property Agency Co., Ltd. was suspected of illegally engaging in trademark agency, and immediately conducted an investigation.

Upon investigation, the party concerned signed a trademark agency service contract with the applicant. After submitting application materials for trademark registration,  the client inquires about whether the application for trademark registration was successful, the party concerned has sent to the client a notice of rejection issued by the trademark registration examination authority and other relevant materials and has indicated that it is necessary to re-pay the relevant fees to make an appeal. In their communications with the client on WeChat, the parties made promises on several occasions such as "If we use the materials written by the chief lawyer, we can successfully pass the review" and "If we find a competent chief lawyer to write materials, the trademark can be issued without fail", and mentioned on many occasions such contents as "It is certain that we will regret to abandon the review." The acts of the parties violated Article 68 of the Trademark Law and constituted acts of disrupting the order of the trademark agency market by improper means. On September 2, 2021, the Haidian Market Supervision Bureau decided to impose an administrative penalty according to law, which involved a warning to the party concerned and a fine of 20,000 RMB.

An application for registration of a trademark must meet the relevant prescribed conditions before it can pass the examination. In this case, as a professional organization acted as  trademark agency, the party concerned should be aware of the relevant regulations on trademark agency, but made false promises to the client, which harmed the interests of the client and disrupted the normal order of the trademark agency market, and should be punished.

13. The Tianjin Hongqiao District Market Supervision Bureau investigated and punished the case of Tianjin Qichengxintai Intellectual Property Agency Co., Ltd. disrupting the order of the trademark agency market by improper means

The Market Supervision Bureau of Hongqiao District of Tianjin Municipality received the transfer clues and relevant tip-off materials, which reflected that Tianjin Enterprise Chengxintai Intellectual Property Agency Co., Ltd. was suspected of having infringed upon another company's trade secrets in the process of providing trademark agency services, and immediately analyzed, researched the evidence and conducted investigations.

Upon investigation, no suspected infringement of trade secrets as mentioned in the reporting materials was found, but the parties accepted the entrustment of a company with conflict of interests in the same trademark case, and solicited business in a misleading manner. The acts of the parties violated the provisions of Article 88 of the Regulation on the Implementation of the Trademark Law and constituted acts of disrupting the order of the trademark agency market by improper means. Zhang and business commissioner Zheng, who were in charge of the business of the company, were directly responsible for the aforesaid illegal acts. On July 6, 2021, the Market Supervision Bureau of Hongqiao District legally imposed administrative penalties, fining 25,000 RMB on the company, 15,000 RMB on Zhang, and 10,000 RMBon Zheng.

In this case, the party's violation of law as a professional institution providing trademark agency services was very covert. The market regulatory authority has effectively found out the facts without missing any clues to the violations, seriously dealt with the companies involved and the relevant directly liable persons, and caused powerful warnings and deterrents.

Source: natlawreview.com-Aaron Wininger, Schwegman Lundberg Woessner IP Law Firm

Editor: IPR Daily-selly