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5 White Paper on the Business Environment in China
Law. us the holder of the patent cannot directly refuse to “Jin Jun Mei” Generic Name Trademark: Administrative
patent a license to bona de standard user who is willing to pay
reasonable royalties. Both Huawei and IDC are members of the Dispute
European Telecommunications Standards Institute, therefore On March 9th 2007, Fujian Wuyishan National Nature
IDC was obliged to grant Huawei a license to implement
its patent and the royalty rate is determined by the FRAND Reserve Lapsang Tea Industry Co., Ltd., “(Lapsang Tea”)
principles, which if the parties could not agree to would be applied to register a trademark, “Jin Jun Mei” in classi cation
chosen by a court of law. is case was the rst standard essential 30. is registration was opposed by Wuyishan Tong Mu Tea
patent royalty dispute in China, and applied the FRAND Co. Ltd. (“Tong Mu”). e Trademark O ce ruled after review
principles for the rst time. It is an important precedent. that the mark Jin Jun Mei was approved for registration. Tong
Mu, dissatis ed with this ruling applied to the Trademark
“Power Dekor”Famous Trademark Protection Case Review and Adjudication Board for a retrial, claiming Jin Jun
Hebei Guang Tai Gypsum Mining Co. Ltd (“Guang Mei was a generic name and thus in violation of Trademark
Law, Article 10(1)(viii) and Article 11(1)(i) and (ii). On 4th
Tai”), had a trademark composed of the Chinese character January 2013 the Trademark Review and Adjudication Board
for “Power Dekor” and a realistic painting of a standing held that evidence provided was insu cient to prove that Jin
elephant, registered on 21st March 2003 for products such Jun Mei had become a generic name of a product, approving
as gypsum, gypsum board, cement etc. Power Dekor Group the mark for registration. Tong Mu dissatis ed with the ruling,
Co. Ltd (“Power Dekor”) is the owner of the mark “power applied to the Beijing First Intermediate Court, which in turn
Dekor and sketch”, approved for registration on 14th May held that the Trademark Review and Adjudication Board
1997 for oors. Power Dekor applied to the Trademark handled the matter improperly and Tong Mu’s claims were
Review and Adjudication Board for revocation of Guang not sustained. However the High Court in Beijing held that
Tai’s trademark claiming it was a malicious imitation of this Jin Jun Mei had been recognized and treated by the public as
famous trademark and the products involved had strong a king of product name, like Black Jade Tea and became the
relevance to the oor. e Power Dekor group is highly eventually generic name of a certain kind of black tea. us
popular and has great in uence in the oor industry and uses registration of Jin Jun Mei was denied and the matter was
construction materials. ere can be confusion about these referred to the Trademark Review and Adjudication Board for
similar marks. On 31st August 2009 the Trademark Review a new ruling. is case de ned issues relating to a situation
and Adjudication Board held there was insu cient evidence in which a trademark in dispute becomes a generic name.
to prove that the registration of the trademark in dispute was However if the trademark in dispute is not a generic name,
a malicious registration act of Power Dekor. Power Dekor was but by applying for registration, it becomes a generic name by
dissatis ed with this judgment and led a lawsuit with the the proof of registration, that becomes the problem.
Beijing First Intermediate Court. e Beijing Intermediate
Court overturned the decision of the Trademark Review Counterfeit Edible Oil Registered Trademark: Criminal Case
and Adjudication Board holding that the trademark Power e Henan High Court held that Defendants Zhong
Dekor and sketch was well-known in China and pursuant to
the Trademark Law, Article 13 entitled to protection. Both Liangui and Huang Li established a company for the purpose
the Trademark Review and Adjudication Board and Gong of illegal activities and engaged in criminal activities. ey had
Tai were dissatis ed with the Beijing High Court decision, established an oil company to sell counterfeit edible oil using
claiming that the mark Power Dekor and sketch was not a other persons’ registered trademarks “Gold Arowana” and
well-known mark. e Supreme Court held that considering “Lu Hua”. e Court decided that Zong Liangui committed
the awareness of Power Dekor Group’s trademark, Power the crime of counterfeiting registered trademarks and selling
Dekor and sketch to the public and its substantial marketing goods that became illegal because of this counterfeiting.
activities, the mark had met the requirements of a well-known Most defendants were sentenced to more than 11 years and
mark and held the High Court ruling was incorrect. imprisonment and were ned RMB 10.5 million. Twenty ve
other defendants in these companies were also sentenced to
ey held the overall visions of the trademark in dispute other xed prison terms.
and referenced trademark in this case are basically the same.
Both marks concern construction materials. Guang Tai should is Henan case interestingly enough used a three in one
have known of public awareness of the referenced mark. e system, namely hearing a criminal case, civil case and admin-
Supreme Court set aside the judgment of the High Court and istrative case and disposing of it in one trial.
upheld the judgment of the First Trial Court.
84
Law. us the holder of the patent cannot directly refuse to “Jin Jun Mei” Generic Name Trademark: Administrative
patent a license to bona de standard user who is willing to pay
reasonable royalties. Both Huawei and IDC are members of the Dispute
European Telecommunications Standards Institute, therefore On March 9th 2007, Fujian Wuyishan National Nature
IDC was obliged to grant Huawei a license to implement
its patent and the royalty rate is determined by the FRAND Reserve Lapsang Tea Industry Co., Ltd., “(Lapsang Tea”)
principles, which if the parties could not agree to would be applied to register a trademark, “Jin Jun Mei” in classi cation
chosen by a court of law. is case was the rst standard essential 30. is registration was opposed by Wuyishan Tong Mu Tea
patent royalty dispute in China, and applied the FRAND Co. Ltd. (“Tong Mu”). e Trademark O ce ruled after review
principles for the rst time. It is an important precedent. that the mark Jin Jun Mei was approved for registration. Tong
Mu, dissatis ed with this ruling applied to the Trademark
“Power Dekor”Famous Trademark Protection Case Review and Adjudication Board for a retrial, claiming Jin Jun
Hebei Guang Tai Gypsum Mining Co. Ltd (“Guang Mei was a generic name and thus in violation of Trademark
Law, Article 10(1)(viii) and Article 11(1)(i) and (ii). On 4th
Tai”), had a trademark composed of the Chinese character January 2013 the Trademark Review and Adjudication Board
for “Power Dekor” and a realistic painting of a standing held that evidence provided was insu cient to prove that Jin
elephant, registered on 21st March 2003 for products such Jun Mei had become a generic name of a product, approving
as gypsum, gypsum board, cement etc. Power Dekor Group the mark for registration. Tong Mu dissatis ed with the ruling,
Co. Ltd (“Power Dekor”) is the owner of the mark “power applied to the Beijing First Intermediate Court, which in turn
Dekor and sketch”, approved for registration on 14th May held that the Trademark Review and Adjudication Board
1997 for oors. Power Dekor applied to the Trademark handled the matter improperly and Tong Mu’s claims were
Review and Adjudication Board for revocation of Guang not sustained. However the High Court in Beijing held that
Tai’s trademark claiming it was a malicious imitation of this Jin Jun Mei had been recognized and treated by the public as
famous trademark and the products involved had strong a king of product name, like Black Jade Tea and became the
relevance to the oor. e Power Dekor group is highly eventually generic name of a certain kind of black tea. us
popular and has great in uence in the oor industry and uses registration of Jin Jun Mei was denied and the matter was
construction materials. ere can be confusion about these referred to the Trademark Review and Adjudication Board for
similar marks. On 31st August 2009 the Trademark Review a new ruling. is case de ned issues relating to a situation
and Adjudication Board held there was insu cient evidence in which a trademark in dispute becomes a generic name.
to prove that the registration of the trademark in dispute was However if the trademark in dispute is not a generic name,
a malicious registration act of Power Dekor. Power Dekor was but by applying for registration, it becomes a generic name by
dissatis ed with this judgment and led a lawsuit with the the proof of registration, that becomes the problem.
Beijing First Intermediate Court. e Beijing Intermediate
Court overturned the decision of the Trademark Review Counterfeit Edible Oil Registered Trademark: Criminal Case
and Adjudication Board holding that the trademark Power e Henan High Court held that Defendants Zhong
Dekor and sketch was well-known in China and pursuant to
the Trademark Law, Article 13 entitled to protection. Both Liangui and Huang Li established a company for the purpose
the Trademark Review and Adjudication Board and Gong of illegal activities and engaged in criminal activities. ey had
Tai were dissatis ed with the Beijing High Court decision, established an oil company to sell counterfeit edible oil using
claiming that the mark Power Dekor and sketch was not a other persons’ registered trademarks “Gold Arowana” and
well-known mark. e Supreme Court held that considering “Lu Hua”. e Court decided that Zong Liangui committed
the awareness of Power Dekor Group’s trademark, Power the crime of counterfeiting registered trademarks and selling
Dekor and sketch to the public and its substantial marketing goods that became illegal because of this counterfeiting.
activities, the mark had met the requirements of a well-known Most defendants were sentenced to more than 11 years and
mark and held the High Court ruling was incorrect. imprisonment and were ned RMB 10.5 million. Twenty ve
other defendants in these companies were also sentenced to
ey held the overall visions of the trademark in dispute other xed prison terms.
and referenced trademark in this case are basically the same.
Both marks concern construction materials. Guang Tai should is Henan case interestingly enough used a three in one
have known of public awareness of the referenced mark. e system, namely hearing a criminal case, civil case and admin-
Supreme Court set aside the judgment of the High Court and istrative case and disposing of it in one trial.
upheld the judgment of the First Trial Court.
84
