Page 142 - 2017 White Paper
P. 142
7 White Paper on the Business Environment in China
granted on November 5th 2014. JYK Company claimed the mechanism of complaint. The system balances the
that the barbecue oven sold by Yong Kong Jinshide interests between the parties and contributes to the
Industrial and Trading Co., Ltd. (“JSD Company”) on the health and orderly development of electronic commerce
network trading platform Tmall and Zhejiang Tmall platforms.
Network Co., Ltd. (“Tmall Company”) failed to take
effective measures after JYK Company sent a complaint Guangzhou Star River Industrial
letter of infringement and should bear joint liability for Development Co., Ltd., and Guangzhou
infringement. Zhejiang Jinhua Intermediate People’s Hongfu Real Estate Co., Ltd. v. Jiangsu Weifu
Court held that the products of JSD Company infringed Group Construction Development Co., Ltd.
upon the patent rights of JYK Company. The complaint
materials filed by JYK Company complied with the 1. Case Brief
requirements on format of Tmall Company, but Tmall
Company disapproved of said materials, failed to fulfil Guangzhou Hongfu Real Estate Co., Ltd. (“Hongfu
the obligation of reasonable review, and failed to take Company”) owned the associated trademarks No.
necessary measures to mitigate further damages, and 1946396 and No.1948763, respectively verified in the
thus, Tmall Company should bear joint liability with JSD 36th category “lease and management of immovable
Company for the enlarged proportion of damages. The property” and the 37th category “building” and later
Court ordered JSD to promptly stop selling the infringing transferred them to Guangzhou Star River Industrial
products and to compensate JYK Company for economic Development Co., Ltd. (“Star River Company”). Hongfu
losses in the amount of 150,000 yuan and ordered Tmall Company was permitted to use said two registered
Company to bear joint liability for 50,000 yuan of said trademarks and to file lawsuits of infringement in its own
amount. Tmall Company was dissatisfied and appealed. name. Hongfu Company and its associated enterprises
Zhejiang Provincial High People’s Court held that the successively developed real estate projects named
complaint by JYK Company complied with the basic “Star River” in Guangzhou, Beijing, Shanghai, etc. which
essentials of the provision of “notice” in Tort Law, which gained many honors. Since 2000, Jiangsu Weifu Group
was a valid notice. Tmall Company failed to take effective Construction Development Co., Ltd. (“Weifu Company”)
measures immediately after receiving the complaint presented many real estate projects entitled “Star River
and it was not improper for the judgement of the first Garden”, “Star Garden”, “Star Sight Garden”, etc. All the
instance to order Tmall Company to bear joint liability for communities’ names were filed with the Civil Affairs
the extended losses, and therefore, the Court sustained Bureau of Nantong Municipality of Jiangsu Province for
the judgement of the first instance. approval. Star River Company and Hongfu Company
initiated a lawsuit on the grounds that the words “Star
2. Comment River” used in the immovable projects developed by
Weifu Company infringed upon its registered trademark
This case involved the issue on how to define the and constituted unfair competition.
responsibility of network trading platforms when they
infringe upon the patented products. Since patent Jiangsu Nantong Intermediate People’s Court of the
infringement is not noticeable, the judgement of the first instance held that Weifu Company’s using “Star River
second instance held that the “necessary measures” Garden” as the name of the building it developed did not
specified in the Tort Law are not limited to deleting, confuse consumers about the source of this building, and
shielding or cutting off the links, but rather should be therefore, did not constitute trademark infringement.
determined by combining the nature of the infringed Further, Weifu Company possessed no intent to steal
right, the specific situation of the infringement, the it, thus it would not constitute unfair competition.
technological methods available, etc. However, to Therefore, the Court dismissed the claims of Star River
forward the complaint materials to the respondent is one Company and Hongfu Company. Star River Company
of the necessary measures that should have be taken. and Hongfu Company were dissatisfied and appealed to
Based on this, the Court determined that Tmall Company Jiangsu Provincial High People’s Court. Jiangsu Provincial
in the instant case failed to take necessary measures. This High People’s Court dismissed the appeal and sustained
case used the mechanism of “notify-counter notify” in the original judgement.
the field of copyright, which protects the interests of the
patentee while preventing the patentee from abusing
142
granted on November 5th 2014. JYK Company claimed the mechanism of complaint. The system balances the
that the barbecue oven sold by Yong Kong Jinshide interests between the parties and contributes to the
Industrial and Trading Co., Ltd. (“JSD Company”) on the health and orderly development of electronic commerce
network trading platform Tmall and Zhejiang Tmall platforms.
Network Co., Ltd. (“Tmall Company”) failed to take
effective measures after JYK Company sent a complaint Guangzhou Star River Industrial
letter of infringement and should bear joint liability for Development Co., Ltd., and Guangzhou
infringement. Zhejiang Jinhua Intermediate People’s Hongfu Real Estate Co., Ltd. v. Jiangsu Weifu
Court held that the products of JSD Company infringed Group Construction Development Co., Ltd.
upon the patent rights of JYK Company. The complaint
materials filed by JYK Company complied with the 1. Case Brief
requirements on format of Tmall Company, but Tmall
Company disapproved of said materials, failed to fulfil Guangzhou Hongfu Real Estate Co., Ltd. (“Hongfu
the obligation of reasonable review, and failed to take Company”) owned the associated trademarks No.
necessary measures to mitigate further damages, and 1946396 and No.1948763, respectively verified in the
thus, Tmall Company should bear joint liability with JSD 36th category “lease and management of immovable
Company for the enlarged proportion of damages. The property” and the 37th category “building” and later
Court ordered JSD to promptly stop selling the infringing transferred them to Guangzhou Star River Industrial
products and to compensate JYK Company for economic Development Co., Ltd. (“Star River Company”). Hongfu
losses in the amount of 150,000 yuan and ordered Tmall Company was permitted to use said two registered
Company to bear joint liability for 50,000 yuan of said trademarks and to file lawsuits of infringement in its own
amount. Tmall Company was dissatisfied and appealed. name. Hongfu Company and its associated enterprises
Zhejiang Provincial High People’s Court held that the successively developed real estate projects named
complaint by JYK Company complied with the basic “Star River” in Guangzhou, Beijing, Shanghai, etc. which
essentials of the provision of “notice” in Tort Law, which gained many honors. Since 2000, Jiangsu Weifu Group
was a valid notice. Tmall Company failed to take effective Construction Development Co., Ltd. (“Weifu Company”)
measures immediately after receiving the complaint presented many real estate projects entitled “Star River
and it was not improper for the judgement of the first Garden”, “Star Garden”, “Star Sight Garden”, etc. All the
instance to order Tmall Company to bear joint liability for communities’ names were filed with the Civil Affairs
the extended losses, and therefore, the Court sustained Bureau of Nantong Municipality of Jiangsu Province for
the judgement of the first instance. approval. Star River Company and Hongfu Company
initiated a lawsuit on the grounds that the words “Star
2. Comment River” used in the immovable projects developed by
Weifu Company infringed upon its registered trademark
This case involved the issue on how to define the and constituted unfair competition.
responsibility of network trading platforms when they
infringe upon the patented products. Since patent Jiangsu Nantong Intermediate People’s Court of the
infringement is not noticeable, the judgement of the first instance held that Weifu Company’s using “Star River
second instance held that the “necessary measures” Garden” as the name of the building it developed did not
specified in the Tort Law are not limited to deleting, confuse consumers about the source of this building, and
shielding or cutting off the links, but rather should be therefore, did not constitute trademark infringement.
determined by combining the nature of the infringed Further, Weifu Company possessed no intent to steal
right, the specific situation of the infringement, the it, thus it would not constitute unfair competition.
technological methods available, etc. However, to Therefore, the Court dismissed the claims of Star River
forward the complaint materials to the respondent is one Company and Hongfu Company. Star River Company
of the necessary measures that should have be taken. and Hongfu Company were dissatisfied and appealed to
Based on this, the Court determined that Tmall Company Jiangsu Provincial High People’s Court. Jiangsu Provincial
in the instant case failed to take necessary measures. This High People’s Court dismissed the appeal and sustained
case used the mechanism of “notify-counter notify” in the original judgement.
the field of copyright, which protects the interests of the
patentee while preventing the patentee from abusing
142
