Recently, our firm won the first instance of an administrative litigation case for invalidation of an invention patent, in which it is ruled that the invention patent should be comp...
Introduction In the chemical field, it is difficult to seek invalidation of a patent claiming to have achieved unexpected technical effect. This case provides a strategy for success...
“今日头条” (Jin Ri Tou Tiao – “Toady’s Headlines” in Chinese)” v. “今日油条” (Jin Ri You Tiao – “Today’s Fried Dough Sticks” in Chinese) Lost the First Instance; Court: Not Constitute Trademark Infringement or Unfair Competition
Recently, with regards to “今日头条” (Jin Ri Tou Tiao – “Toady’s Headlines” in Chinese) v. “今日油条” (Jin Ri You Tiao – “Today’s Fried Dough Sticks” in Chinese) trademark infringement and unfair competition dispute case, the first instance judgment was made. The Guangzhou Intellectual Property Court found in the first instance that “今日油条” (Jin Ri You Tiao – “Today’s Fried Dough Sticks” in Chinese) did not constitute trademark infringement of “今日头条” (Jin Ri Tou Tiao – “Toady’s Headlines” in Chinese), nor did it constitute unfair competition. After the first-instance judgment was pronounced, the plaintiff appealed, and the case has now entered the second-instance stage.
As early as 2020, “今日油条” (Jin Ri You Tiao – “Today’s Fried Dough Sticks” in Chinese) breakfast restaurant opened by Henan Today’s Fried Dough Sticks Catering Management Co., Ltd. (hereinafter referred to as “Today’s Fried Dough Sticks Company”) became popular on the Internet, causing a lawsuit filed by Beijing Douyin Information Service Co., Ltd. (hereinafter referred to as “Douyin Company”), which “今日头条” (Jin Ri Tou Tiao – “Toady’s Headlines” in Chinese) belongs to.
Douyin Company is the trademark owner of the four (4) registered trademarks, including “今日头条” (Jin Ri Tou Tiao – “Toady’s Headlines” in Chinese), “头条” (Tou Tiao – “Headlines” in Chinese), etc. Douyin Company sued that the above mentioned four (4) registered trademarks were widely known to the relevant public before the alleged infringing act occurred, and requested the court to recognize the marks as well-known trademarks. Today’s Fried Dough Sticks Company opened breakfast restaurant to sell fried dough sticks, soy milk and other foods, and used a large number of logos such as “油条” (You Tiao – “Fried Dough Sticks” in Chinese) and “今日油条” (Jin Ri You Tiao – “Today’s Fried Dough Sticks” in Chinese) on restaurant signboards, menus, food packaging, restaurant decoration, employee clothing, WeChat public accounts, websites, investment promotion advertisements and exhibitions, etc., which infringed Douyin Company’s trademark rights and constituted unfair competition. As such, Douyin Company requested the court to order Today’s Fried Dough Sticks Company to stop infringement and compensate for economic losses and reasonable litigation expenses totaling CNY 2 million (approx. USD 287,410).
After hearing, the Guangzhou Intellectual Property Court held that the accused logo and the registered trademarks involved in the case did not constitute the identical or similar marks in terms of composing characters, meaning, color and other constituent elements, and the relevant public could easily distinguish with an average level of attention. The existing evidence failed to prove that Today’s Fried Dough Sticks Company had the intention to confuse or had caused actual confusion among the public, so Today’s Fried Dough Sticks Company did not constitute ordinary trademark infringement.
In addition, the court also pointed out that the words used in the registered trademarks involved in the case, i.e. “头条” (Tou Tiao – “Headlines” in Chinese) and “今日头条” (Jin Ri Tou Tiao – “Toady’s Headlines” in Chinese), were common words, and the use was inherently weak in the field of news and information industry. The allegedly infringing logo and the registered trademarks involved in the case were used in completely different markets. Douyin Company had no practical interests in the catering field, and the two parties did not have direct or indirect competition in the market. Today’s Fried Dough Sticks Company did not weaken, defame or uglify the well-known trademark, nor did they improperly use the reputation of the well-known trademark. Therefore, even if some of the trademarks in the registered trademarks involved in the case can be recognized as well-known trademarks, Today’s Fried Dough Sticks Company does not constitute infringement of well-known trademarks.
Therefore, the Guangzhou Intellectual Property Court dismissed all of Douyin Company’s claims in the first instance. (April 18, Yangcheng Pie)
Software Copyright
Kingsoft Office Awarded CNY 10 million in Compensation to Foxit Software in the First Instance of a PDF Software Infringement Dispute
The protracted litigation dispute between Foxit Software and Kingsoft Office has made new progress.
Recently, Foxit Software issued an announcement on the progress of the litigation, indicating that Kingsoft Office and Zhuhai Kingsoft Office Software Co., Ltd. were ordered to immediately stop the infringement on the effective date of the judgment, apologize, and compensate Foxit Software for economic losses and reasonable expenses incurred to stop the infringement totaling CNY 10 million (approx. USD 1,437,029).
According to the announcement issued by Foxit Software in January 2022, the company found at the end of 2019 that 35 iCiba software released on Kingsoft Office’s official website, iCiba’s official website and third-party download websites used Foxit’s PDF technology to realize the function of “export PDF document format” on iCiba.
Accordingly, Foxit Software filed the above-mentioned lawsuit with the Fuzhou Intermediate People’s Court of Fujian Province. (May 7, Shenzhen Business Daily)
Model Cases
2022 IP Enforcement Model Cases Announced
On the occasion of 4.26 World Intellectual Property Day, the State Administration for Market Regulation announced Model Cases of IP Enforcement in 2022. The cases covered trademark infringements, bad faith trademark applications, counterfeit patents, infringement of exclusive rights of Olympic symbols and other fields. (April 25, New Stories in City)
The Supreme People’s Procuratorate Published Model Cases of Intellectual Property Protection by Procuratorial Organs
Recently, the Supreme People’s Procuratorate released Model Cases of Intellectual Property Protection by Procuratorial Organs. The types of cases include trade secret infringement cases, copyright infringement cases, counterfeiting registered trademark cases, and administrative dispute appeal cases involving trademark rights. (April 26, Supreme People’s Procuratorate)
Statistics
State Administration for Market Regulation: Last year, a Total of 44,000 Illegal Cases including Trademark Infringement and Patent Counterfeiting were Investigated and Dealt with
On the morning of April 26, the Information Office of the State Council held a press conference on the Annual Report on China's Crackdown on Infringement and Counterfeiting (2022). Relevant personnel of the State Administration for Market Regulation disclosed that in 2022, the State Administration for Market Regulation carried out the “Iron Fist” action to investigate and handle cases in the field of people’s livelihood, and increased administrative law enforcement in key areas and regions with frequent public feedback, hot public opinions, and frequent infringement and counterfeiting, where the State Administration for Market Regulation investigated and handled a total of 44,000 illegal cases including trademark infringement and patent counterfeiting, with a total involved amount of CNY 1.62 billion (approx. USD 232.8 million). (April 26, Legal Daily – Legal Daily Website)
