In respect of intellectual property legislation, in 2010, the Supreme Court shall revise and formulate 23 laws, rules and regulations on patents, trademarks, copyrights, new plant varieties and other respects concerning intellectual property protection, including promoting the amendments to the Trademark Law, improving the legal system of the labor contract and trade secret protection system, facilitating the legislative coordination of bio-genetic resources management regulations and, drafting the Antitrust Guideline to Abuses of Intellectual Property Right as well as speeding the legislation process of intangible cultural heritage protection and so on.

In respect of judicial interpretation on intellectual property, in 2010, the Supreme Court shall timely promulgate judicial interpretations on application of law on arbitration of civil disputes in antitrust cases, and issue the several provisions of the supreme people's Court on trial implementation of grouping adjudication of civil, administrative and criminal cases in IP tribunal in some local courts as well. Meanwhile, the Supreme Court shall timely draft judicial interpretations or regulatory documents on authorization and ownership determination issues of patents and trademarks.

On April 19, a press conference on the Customs Protection of Intellectual Property Rights was held in Beijing. Meng Yang, Director of Policy and Law Department of General Administration of Customs indicated that in accordance with the provisions of revised Regulations of the People's Republic of China on the Customs Protection of Intellectual Property Rights, since April 1, 2010, the individual who carries or mails infringing goods for personal use exceeded a reasonable amount shall be further punished after confiscation.

In addition, in order to prevent infringing goods from entering into the commerce, the revised regulation provides that imported counterfeit goods shall be destroyed if the infringing features can not be eliminated, instead of being auctioned after simply clearing the marks.

According to Meng Yang, new provisions were added to the revised regulations which allow the right holders to withdraw the application for the Customs protection. There were no specific provisions regarding the withdrawal of application submitted by Intellectual property right holders to the Customs for detention of suspected infringing goods. Considering intellectual property right is a private right, proprietors enjoy verification and authorization rights to the infringing goods detained by the Customs, so the Customs shall allow the right holders to withdraw the application in practice.

The new regulations also provide the liabilities undertook by the right holders who are remiss in obligations to fulfill the modification and cancellation of the Customs recordation. Meng Yang said that the Customs invested a lot of manpower and material resources in IPR protection in recent years, but administrative resources were wasted due to declining attitude of the right holders. In view of this, in order to enhance the administration on the right holders and to improve the efficiency of the Customs enforcement, the newly added provisions requires that, if the intellectual property right holders who do not apply for the modification or cancellation procedures in accordance with relevant provisions and cause serious damage to the legal import and export of others or serious impact on the Customs Enforcement, General Administration of Customs may revoke its recordation upon application of privy or take the initiative.

The application for property preservation shall only be filed by the right holder before litigation in accordance with the provisions of the original regulations but shall be filed both before or in the proceedings in accordance with the provisions of revised regulations.

The 10 Best Practices were elected through screenings and recommendations of courts at various levels, which not only solve some universal difficulties in the application of law but also have great social influence. Prior to this, the case was also honored as the ＂Ten Best Practices in Intellectual Property Protection 2009-2010 of Quality Brands Protection Committee of the Association of Enterprises with Foreign Investment．＂

Case Review:

The Plaintiff BMW AG (hereinafter referred to as BMW) is one of the world's leading automobile manufacturers. The three trademarks of BMW,＂BMW＂, ＂BMW ＆Device＂ and ＂Baoma＂(Chinese version of BMW) are registered in China in class 12 in connection with "motor vehicles, motorcycles and parts thereof". The defendants Shenzhen Century Baoma　Fashion Co., Ltd. (hereinafter referred as ＂Century Baoma＂) and JiaRunDuo Business Co., Ltd．used trademarks ＂MBWL ＆ Device＂and ＂MBWL＂in the products and the trade name＂Century Baoma＂ which contains＂Baoma＂. The defendant Fu Xianqin， as an employee of ＂Century Baoma＂，provided her own bank account for the company only for the purpose of receiving money from the franchise stores. In the ruling, the Hunan Higher People's Court recognized the three registered trademarks of BMW as well-known. It is ruled that as a well-known trademark rights holder, the plaintiff is entitled to legal protection. The Defendant Century Baoma used trademarks “MBWL ＆ Device” and “MBWL” in the products as well as the trade name＂Century Baoma＂, which has caused confusion on the part of the relevant public. The employee Fu Xianqin was also ruled as trademark infringement and unfair competition for providing her bank account for infringement use after having known the company’s infringing activities. The defendants were ordered to stop infringing activities immediately and to eliminate the ill effects as well. Century Baoma and Fu Xianqin were ordered to make a compensation of 500,000 Yuan for the losses of the plaintiff. The ruling has become effective since the parties did not appeal after the first instance decision.

Significance:

This case concerns the legal protection of well-known trademark and trade name. The ruling effectively curbed the unfair activities of taking free ride on the high reputation of famous brands. In this case, the court recognized the plaintiff’s trademarks as well-known after considerations of their identifications and reputations and confirmed the infringement nature of the activities taken by the defendants. In addition, according to the court ruling, Century Baoma has bad faith in using the plaintiff’s trade marks and trade name and the use of the similar marks MBWL & Device has obviously violated the doctrines of good faith and unfair competition, misled the relevant public and constituted unfair competition.

NYIPLA Judge’s Dinner is held annually in Waldorf of the United States to honor the Federal Court judges and those who made contributions to IP industry and provide intellectual property attorneys, corporate counsels and federal judges with an opportunity for communication and learning to strengthen friendship and discuss legal issues. This is the 88th judge’d dinner since the first dinner organized by the association in November 1922.

Known as the largest and most formal dinner organized in New York, Connecticut and New Jersey, it was attended by more than 3,000 people including judges, government officials and legal practitioners. Mario Cuomo, the 52nd New York State Governor, presided the dinner and Richard Linn was awarded the "Outstanding Public Service Award." Together with the U.S. ITC Administrative Judges, Gu Ping shared the intellectual property event in a relaxed and pleasant atmosphere.