China Law Insight : China Law Insight: China Commercial and Intellectual Property Lawyers and Attorneys, Full Service Law Firm: King & Wood

The Provisions, which come into effect on March 15, 2012, are to be implemented and administered by the Ministry of Industry and Information Technology and Communications Administration ("M.I.I.T.") of the P.R.C. The Provisions cover a wide range of issues relevant to the operation of IISPs in the P.R.C., such as commercial websites (as distinguished from "network service providers" which, in M.I.I.T. terminology provide network services, such as internet access), but this article will look only at those online user issues referenced above.

In relation IISPs introducing software which did so maliciously with the knowledge that it would likely be incompatible with existing user software, Article 5 (Items 3 and 5) of the Provisions notes that it is not acceptable for IISPs to “forc[e] incompatibility on services and products provided by other internet information service providers maliciously” or to “maliciously … forc[e] the users to modify the parameters of services or products provided by other internet information services providers.” [2] 

In terms of protections against intrusion upon the user's computer/terminal device (including mobile phones, etc…), Article 7 (Item 7) of the Provisions notes that IISPs cannot "change user's browser configurations or other configurations without notifying the user and obtaining permission from the user."[3] Furthermore, as per Article 8, IISPs who are conducting operations of "downloading, installing, running, upgrading, or uninstalling software, etc., on user terminals should provide definite and complete software function information and should get permission from the users in advance".[4]   In addition, Article 9 of the Provisions provides that IISPs can only bundle their terminal software with other software in such a manner providing clear notice to the user and such that the user can "choose whether or not to install or use the software and should provide a separate uninstall or disable option without adding unreasonable terms".[5] Finally, Article 10 provides that "if internet information service providers pop-up advertisements or other information that are irrelevant to the function of their terminal software on user terminals, internet information service providers should provide users with functional signs to close or quit the window in a prominent manner".[6] Articles 5, 7, 8, 9, and 10 of the Provisions as noted make it clear that maliciously introducing software likely to cause incompatibilities, unauthorized changing of configurations on user browsers, unauthorized installation of software, such as "spyware", unduly forcing users to download software bound to other software, or serving up endless annoying "pop up ads" are unacceptable practices and, in this regard, these Provisions provide users with more control in their relationship with IISPs. 

In terms of data privacy, the Provisions note in Article 11 that "[w]ithout users' consent, internet information service providers should not collect information that is related to the users and can serve to indentify the users' identities solely or in conjunction with other information (hereinafter referred to as "users' personal information") and should not provide other people with users' personal information, unless laws, or administrative regulations specified otherwise".[7]   Article 11 goes on to add that "[w]here the internet information service providers are permitted by the users to collect users' personal information, internet information service providers should clearly inform users of the method, content and purpose of collecting and processing users' personal information, internet information service providers should not collect information that is unnecessary for providing service or should not use users' personal information for purposes other than providing service, either."[8] 

In addition, Article 12 of the Provisions provides that IISPs should "properly keep users' personal information. If users' personal information which internet information service providers are keeping is leaked or possibly leaked, internet information service providers should immediately take remedial measures.  If serious consequences are caused or might be caused, internet information service providers should immediately report to the Telecommunications Administration and cooperate with related departments to conduct investigations."[9] 

Finally, Article 13 of the Provisions provides that IISPs cannot without authorization or "justifiable reasons" "change or delete information uploaded by users", "provide others with information uploaded by users without users' permission, unless otherwise provided by the laws or administrative regulations", or "transfer information uploaded by users without authorization or under the guise of users' names, or cheat, mislead, or coerce users to transfer information which users uploaded".[10] Such gives users more control over information which they may upload to an IISP, such as comments or blog entries. Articles 11, 12, and 13 of the Provisions provide clear rules promoting user data privacy and user control over user data, including uploaded information, and provide users with a defined framework for data protection in their online activity. 

Finally, the Provisions require that IISPs provide clear contact information for relevant complaints(Article 14)[11], outline a reporting, review, and assessment mechanism for relevant complaints to the M.I.I.T.(Article 15)[12], and define a statutory framework for applicable punishments, including but not limited to assessment of fines of 10,000-30,000 RMB (as per Articles 16-20).[13] 

With these Provisions coming into effect in March of this year, online internet users in the P.R.C. will then have a better means to provide themselves with additional control over their user experience when dealing with IISPs, as well as additional means to protect their valuable personal data, and internet service providers will have clear guidelines for what is acceptable conduct of business in these areas.  

Note: this publication is for informational purposes only and it does not in any way constitute a legal opinion.  

Advertising slogans, composed of words in the form of phrases, formally possess both the characteristics of both literal works and trademarks. Therefore, in principle, they can be the protected by the PRC Copyright Law ("Copyright Law") and the PRC Trademark Law ("Trademark Law").

Trademark Protection

The Trademark Law provides that:

"Any visual signs of words, devices, letters, numerals or any combination of the above elements, which being able to distinguish the goods or service of one entity from the others, can be registered as trademarks."

Accordingly, advertising brand names consisting of words are acceptable for trademark. As to whether registration is granted, all trademarks go through an official examination to determine if they possess due distinctiveness and can function as indicators the products they represent. In terms of common word marks, the trademark law does not require a word mark to be original or coined in order to achieve distinctiveness. Generally, as long as the words used by a trademark are not the generic name of the goods or does not directly indicate the features of the products, they are considered distinctive and capable of distinguishing its origin. Hence, "Apple", "Great Wall" and other dictionary words possess just as much distinctiveness as the coined words "NEC", "TCL".

Second, the words used by a brand trademark need not be totally unrelated to the features of the products. For instance, "Safeguard" indicates the features of the products in certain a way, but as long as the indication is not a direct description, the mark does not typically lose its distinctiveness.

However, the examination on trademarks for slogans tends to be more stringent both in terms of the examination criteria employed and in its application by the trademark authorities. According to the Examination Criteria issued by the Trademark Office, a slogan that does "not indicate the characteristics of the products" is one of the most elementary requirements for the registration of a slogan trademark. In addition, slogan trademarks should be original and non-popularly used, which sets a higher threshold in the judgment of their distinctiveness and thereby greatly increases the difficulty in getting them registered in the PRC.

As to whether a trademark is original, it is not difficult to judge in the case of common word marks. Non-dictionary words can most easily be regarded or alleged as "original" words, such as "Haier", "Canon" and "Philips". It seems that applying words in a non-dictionary or non-traditional way, an applicant can relatively easily meet the "originality" component.

The originality of slogans, on the other hand, is not so easy to ascertain. As a short phrase consisting of words, the purpose of slogan is to promote the concept, culture and image of the enterprises and their products, which requires it to be expressed in a way familiar and comprehensible to the general public. Hence, slogan trademarks cannot differ far from the language used by people in daily life. There may be some uniqueness in the sentence structuring, but the slogan ultimately cannot avoid being tinted with a sense of popularity. As such, the originality of a slogan is intrinsically hard to demonstrate.

As different people can have different views and feelings on what is popularly used, this makes Trademark Office's examination subjective and uncertain. The following slogans have previously applied for registration as trademarks: "The world swings with me", "Inspiration lights life", "Your vision, Our future", "Listening creates the future", "Sense the world, foresee the future" and "Share the moment, share the life" of which the Trademark Office directly approved the registration for "The world swings with me", "Inspiration lights life" and "Your vision, Our future", while rejecting the rest for lack of distinctiveness. The Office even makes a contradictory conclusion to the same slogan applied for different goods. For example, the Eastman Kodak Company's slogan "Share the moment, Share life" was approved in for pictures, but was denied in for cameras.

However, Article 11 of the Trademark Law provides that slogans that lack distinctiveness cannot be registered as trademarks with the exception of "those that have acquired distinctiveness through use ". According to this provision, if the slogans have established sole association with certain enterprises in the public recognition through use and are capable of functioning as a distinguisher of their source, they can be granted with trademark registration. As this exceptional provision further increases the threshold of registration, meanwhile it has opened a new path for the registration of slogan trademarks. Having met the requirements of this provision by proving the acquired distinctiveness through use, the slogans mentioned above, i.e. "Listening creates the future" of KENWOOD, "Sense the world, foresee the future" of OMRON and "Share the moment, Share the life" of Kodak, which were preliminarily rejected by the Trademark Office, have eventually all been approved for registration.