Beijing Municipal Procuratorate Issued Typical Cases of Intellectual Property Protection in 2020
On 15 April 2021, the Beijing Municipal People's Procuratorate (“Beijing Municipal Procuratorate”) released the 2020 Beijing Municipal Procuratorate Intellectual Property Protection Work Report (the “Report”) and typical cases of intellectual property protection.
In 2020, Beijing Municipal Procuratorate approved the arrest 179 suspects in a total of 116 cases for crimes involving IP infringement and prosecuted 216 persons in a total of 131 cases in accordance with the law. 48 persons were transferred to criminal cases upon the recommendation of administrative authorities, 75 administrative litigation and supervision cases were accepted, 3 cases have been filed for opposition, and 1 case has been approved for retrial. Meanwhile, 32 civil litigation supervision cases involving intellectual property rights have been accepted, and 1 case has been filed for opposition.
According to the Report, the aforementioned cases show four major features. First, the criminal cases are mainly high-tech crimes and downstream crimes. Second, most administrative litigation and supervision cases are handled in Beijing. Third, the civil cases opposed are supported by the revised judgment, accelerating the integration of adjudication standards. Fourth, cases involving time-honored brand trademarks occur from time to time.
The typical cases are as follows:
Shanghai Intellectual Property Court Released 12 Typical Cases of Unfair Competition
On 13 April 2021, the Shanghai Intellectual Property Court (the “Shanghai IP Court”) released its white paper and typical cases of unfair competition cases from 2015 to 2020.
The press conference reported 12 typical cases, reflecting that the Shanghai IP Court and the Shanghai No.3 Intermediate Court, in hearing unfair competition cases, accurately defined the legal attributes of various market behaviors, severely cracked down on counterfeiting and confusing behaviors and trade secret infringement, effectively stopped false advertisements and commercial defamation, regulated new types of market competition behaviors in accordance with the law, and actively promoted new technologies, products, and business models. The Shanghai IP Court also supported the healthy development of the "three new economies", encouraged and protected fair competition, and protected the legitimate rights and interests of operators and consumers.
Typical cases include:
Zoo Loses the ‘First Face Recognition Case’ at Appeal
A law professor wins lawsuit against a wildlife park for its enforcement of facial-recognition technology on its members.
In April 2019, Guo Bing, an associate professor at Zhejiang Sci-Tech University, paid RMB 1,360 for an annual membership card to the Hangzhou Wildlife World. In July and October 2019, the Hangzhou Wildlife World sent two text messages to Guo Bing informing him that entry to the park will be changed from fingerprint identification to facial-recognition technology. Guo Bing did not accept the change, citing that the use of facial-recognition technology was an invasion of personal privacy, and requested the park to refund the card. Negotiations were unsuccessful and on 28 October 2019, Guo Bing filed a lawsuit with the Fuyang District People's Court in Hangzhou. The case was deemed the "first lawsuit against facial recognition" by the media.
On 20 November 2020, the Fuyang Court issued a first instance judgement ordering Wildlife World to compensate Guo Bing for the loss of contractual interests and transportation costs totaling RMB 1,038, and to delete Guo Bing's facial data, including his photo, which was submitted when he applied for the annual membership. Both Guo Bing and Hangzhou Wildlife World appealed to the Hangzhou Intermediate People's Court.
On 9 April 2021, the Hangzhou Intermediate People's Court ruled that Hangzhou Wildlife World deleted the facial and fingerprint identification data submitted by the plaintiff when he applied for the annual fingerprint card.
The Hangzhou Intermediate Court held that biometric information is sensitive personal information. Its improper use will bring unpredictable risks to people’s personal privacy, and stricter regulations should be made.
Honda 4S Store Architectural Works Copyright Infringement Case was Dismissed at Appeal
In 2004, Wuhan Xinjianye Advertising Decoration Co., Ltd. (“ Wuhan Xinjianye”) and Dongfeng Honda Automobile Co., Ltd. (“Honda”) signed a design contract for Wuhan Xinjianye to carry out the image and architectural design of Honda 4S centres. The contract did not stipulate the ownership of the copyright of the architectural works involved, which led to copyright disputes. Wuhan Xinjianye sued Honda for copyright infringement and for the economic loss of RMB 150,000 under the claim that Honda and other parties used its copyrighted CAD drawings (i.e. construction drawings) and renderings to build Honda 4S centres without authorization.
The People's Court of Haidian District of Beijing held that the CAD drawings and renderings were original and should be classified as works. As for what type of works they should belong to, under the regulatory framework PRC copyright law architectural works only refer to the buildings themselves, so they do not constitute as architectural works. Combined with the definition of graphic works and art works in PRC copyright law, as well as the characteristics and uses of CAD drawings and renderings, CAD drawings should be graphic works and renderings should be art works. Although Wuhan Xinjianye is the copyright owner of the CAD drawings, it has authorized Honda to use the drawings to build Honda 4S centres. Therefore, the acts of Honda, Guoji Company and Decheng Company, which obtained CAD drawings from Honda, do not constitute as infringement. In the end, the court ruled to dismiss all claims of Wuhan Xinjianye.
Wuhan Xinjianye appealed against the first-instance judgment and requested to revoke the first-instance judgment. Recently, the Beijing Intellectual Property Court made a final judgment on the case, rejected the appeal and upheld the original judgment.
Beijing Launched Special Campaign on IP Protection in E-commerce Field
Recently, the Beijing Municipal Intellectual Property Office issued a notice (the “Notice”) that from 15 March to 26 April, it will focus on the 2021 launch of a special campaign to “convoy” intellectual property governance in the e-commerce sector.
The Notice requires all relevant departments to attach great importance to and carefully organize and implement the campaign, strengthen cross-regional and cross-departmental coordination, improve the integration between administrative law enforcement and justice, and severely investigate and punish violations of intellectual property rights, counterfeiting and other illegal activities. The campaign will help guide e-commerce companies to carry out infringement judgments and coordinate the transfer of infringement trails to areas outside Beijing. Through a combination of strengthening supervision, self-inspection, and providing assistance, the campaign will promote the improvement of intellectual property governance and protection in e-commerce and raise awareness for intellectual property rights.
The Notice clarified that this special action will strengthen law enforcement inspections, enhance self-inspection, and explore solutions to difficult issues such as determining whether there was infringement and malicious complaints. Professional resources must be concentrated to diagnose and handle issues in the e-commerce field. A number of representative IP cases highlight the effectiveness of governance, and it is necessary to publicize and implement the national standards set out in the "Intellectual Property Protection and Management of E-commerce Platforms”.