No.175 February 28, 2021 |
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In this issue
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 CNIPA: First Relationship Table of Strategic Emerging Industry Classification and IPC 2021
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The CNIPA recently published the first "Relationship Table of Strategic Emerging Industry Classification and International Patent Classification (2021) (Trial)".
The compilation of the Table is based on the "Classification of Strategic Emerging Industries (2018)", it makes direct comparison of industries with priority placed in the location of application, provides practical guideline in the relationship of 9 major strategic emerging industries such IT, high-end equipment manufacturing, new material, biological, EV, new energy, energy reservation and environmental protection, digital creation, and the related services, with the international patent classification; A total of 1,872 comparisons are listed, involving 40 second-level classifications of strategic emerging industries, 8 divisions, 89 major categories, 317 sub-categories, 2,893 major groups, and 35,473 groups of the International Patent Classification.
(Source: CNIPA website)
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| CNIPA Approved the First Batch of EU GI Products in GI Agreement
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In March, the CNIPA announced the approval of GI protection for 96 EU products, which are the first batch of products listed in the “China-European GI Agreement” and recommended by EU Commission, such as Cyprus Zinnia Wine, Ceske Budejovice Beer, Munich Beer, Danish Blue Cheese and Irish Whiskey Products. Prior to this, the EU Commission had issued a communiqué on February 9, confirming that the China-EU GI Agreement came into effect on March 1 and the first batch of 100 Chinese GI products have also been protected across the EU. As of now, China and the EU have a total of 110 Chinese GIs in Europe and 134 EU GIs in China.
In the next four years, both sides will advance the progress for the second batch in the China-EU list which comprises 175 GIs in China and the EU respectively.
(Source: China National Intellectual Property Strategy Network)
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| China-Austria PPH Pilot Program Extended Another 5 Years
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The CNIPA Patent Office and Austrian Patent Office announced the extension of the Patent Prosecution Highway (PPH) pilot project for another 5 years until February 28, 2026. The relevant requirements and procedures for submitting PPH requests in the two offices remain unchanged.
The China-Austria PPH pilot program started on March 1, 2013, was extended three times in 2014, 2016 and 2018, until February 28, 2021.
(Source: CNIPA website)
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| China-Thailand Co-signed IP Cooperation Memoradum
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The CNIPA and the Thailand IP Office signed the "Joint Memorandum of Understanding on IP Cooperation" on March 1, which establishes an overall framework for the cooperation in varied fields such as patent, trademark, industrial design, circuits layout and GI protection.
(Source: CHINA Official WeChat Account)
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| Cases in Spotlight
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| Unitalen Client Fidlock Acquiring Patent Protection through Cost-effective Patent Administrative Complaint
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Case Summary:
Fidlock Co., Ltd., headquartered in Germany, our client, is a major supplier of fastening system products worldwide. It provides an original and user-friendly fastening system using an exclusive technology, which has completely changed the traditional solutions and market structure, combining the advantages of magnetic fasteners and that of mechanical locking. Fidlock has acquired a series of patents for the related technology in many countries including China.
The respondent Dongguan Sports Goods Co., Ltd. engaged in plastic product mold design as well injection molding product processing, produced and sold a variety of magnetic locks infringing our client’s patent right. Therefore, we filed a patent administrative complaint the Dongguan Municipal Supervision Bureau on behalf of Fidlock.
The Dongguan Municipal Supervision Bureau conducted trial on the case after an on-site inspection and then made the ruling based on the "Patent Infringement Judgment Advisory Opinion" issued by the expert group of the Dongguan IP Office's Rights Protection Assistance Center, which held that the alleged infringing products fell within the protection scope of Fidlock's multiple patents and ordered the respondent to stop the infringement immediately.
Typical Significance:
In general, compared with patent infringement litigation, the processing period of patent administrative complaints is shorter, and the cost is lower, and the patent administrative law enforcement department can also be involved to conduct on-site inspections, which makes it easier to obtain evidence of infringement. Therefore, patent administrative enforcement shall play an important role in patent right protection.
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| Unitalen Client NucTech Won Victory in a Rare Trademark Administrative Litigation Supervision Case Tried by Procuratorate
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Case Summary:
NucTech, our client, noticed that Taihong Vision Company had registered trademark No. 121253550 “太弘威視TAIHONG VISION” and graph (“the disputed mark”) designated for use in Class 9 on products such as non-medical X-ray devices, which had infringed on their No. 1341322 “威視” and No. 6989335 “威視NUCTECH” and graph trademarks. Therefore, NucTech filed for invalidation of the disputed mark in 2017 and all of the claims was supported by the Trademark Review and Adjudication Board (TRAB).
In refusal to accept the ruling, Taihong Vision initiated litigation at Beijing IP Court of first instance in request for TRAB reexamination and the request was dismissed after hearing; then Taihong appealed to the Beijing Higher Court of second instance, but it withdrew the case and then in October 2019, it applied for retrial, after which, its request for reexamination was rejected again.
At last, Taihong VisionCompany had No. 4 Branch of the Beijing Procuratorate accept to supervise this case in September 2020. After hearing, the Procuratorate found that the request for supervision made by Taihong Vision did not meet the conditions stipulated in Article 91 of the Administrative Litigation Law. Thus our client won the final victory after a series of trails.
Typical Significance:
This case is the first public hearing held by a Beijing Procuratorate on an administrative litigation supervision case. It provides has reference and exemplary significance for the future similar cases.
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| Unitalen Client Duracell Won Trademark Right Litigation for Its Battery Color Combination
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Case Summary:
USA Duracell (the plaintiff) is the world leading manufacturer of high-performance alkaline batteries. It has used "DURACELL" trademark worldwide since 1964, and the copper and black colored graphic mark since 1973, and they are also registered in China as trademark  and color combinations such as ,  and , designated for use in Class 9 batteries products.
The battery sold by the defendant used the combination of copper and black colors in its battery, and the length ratio of the colors, which is about one-third of copper, two-thirds of black, and the copper is on the side of anode, the black is on cathode; it’s almost the same as the color combination trademark of Duracell. In addition, the battery labeled with "POWERCELL" wording and the text is in white font in black shade, as shown below.
 
Entrusted by Duracell, Unitalen lawyers initiated litigation at Zhejiang Province Yiwu People’s Court.
Court Decision:
After trail, the court held that Duracell and its color combination trademarks have enjoyed high distinctiveness and popularity, well-known to consumers and the consumers can identify Duracell by its color combination and distinguish it from the batteries produced by another brand. The alleged infringement battery uses similar color combination in similar ratio of length with a similar label “POWERCELL”, which can cause misidentification among consumers and mislead them to believe the two products are somehow related, therefore it has constituted infringement on Duracell’s exclusive right to use the cited trademarks.
Typical Significance:
A color combination trademark refers to a trademark composed of two or more colors in a certain proportion and in a certain sequence. The inherent distinctiveness of a trademark that only uses color as its constituent elements is relatively weak compared to other traditional types of trademarks. Normally, color combination trademarks need to be used for a long time to obtain distinctive features. In this case, Duracell Company has provided sufficient evidence to prove that its color combination trademarks have developed a unique connection with Duracell through long-term and extensive use, publicity and promotion. Therefore, the court did not accept the defendant's defense that the color combination has become a common packaging and decoration in the industry. This case provides reference to future color combination trademark right cases.
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