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By Susan Ning, Huang Jing and Hazel Yin

On April 3, 2013, the Ministry of Commerce (MOFCOM) published the draft Interim Rules regarding the Standards of Simple Cases of Concentrations of Operators (Draft Standards), to solicit comments from the public.  The Draft Standards set out the factors that MOFCOM would consider when identifying if a concentration of operators would be categorized as a simple case. 

The Draft Standards include the following major provisions:
Continue Reading MOFCOM On the Track to Adopt a Simplified Merger Review Mechanism by Publishing Standards of Simple Merger Cases

By King & Wood Mallesons’ Trademark Group

The Trade Mark Office (TMO) and Trademark Review and Adjudication Board (TRAB) of China have released a list of the latest recognized well-known trademarks. TMO grants 27 well-known trademarks in decisions on opposition and 492 in trademark management cases, among which no foreign brands are listed. Upon reviews…

作者：金杜律师事务所商标组

中国商标局和商标评审委员会公布了最新认定的驰名商标。其中，商标局在商标异议案件中认定27件驰名商标，在商标管理案件中认定492件驰名商标，均无外国品牌。商标评审委员会在商标异议复审、争议案件中认定180件驰名商标，外国品牌有四个：“强生”，“BOSCH”， “ADIDAS阿迪达斯”，“金味”。在上述认定的共计699件驰名商标中，外国品牌仅有4 件，占比千分之六不到，显示了外国知名品牌在中国认定驰名商标所面对的形势依然非常严峻。

更多有关信息，请参考：

http://sbj.saic.gov.cn/tz/

By Kalley Chen  King & Wood Mallesons’ Securities Group

To address China’s aging population issue as well as its need to improve access to healthcare in rural areas, healthcare reform has become a priority for the Chinese government.

A key mechanism to improve access is through the promotion of private healthcare. While current exit restrictions exist in relation to private medical institutions, recent policy developments which have liberalized investment in the healthcare sector demonstrate China’s progress toward improving healthcare. It is likely that these policies may stimulate greater PE investment opportunities, in particular within the private healthcare sector.
Continue Reading The promotion of private healthcare services- A Challenge or an opportunity?

作者：陈慧  金杜律师事务所证券组

为了解决中国人口老龄化问题，同时改善农村地区医疗水平，医疗改革已经成为中国政府优先关注的问题。

发展私营医疗产业是提升医疗水平的一个主要机制。虽然私营医疗机构目前存在退出限制，但是政府近期颁布的一系列新政，使得医疗健康领域的投资更加开放，显示了中国在提升医疗服务水平方面的进展。这些政策很可能促进更多的私募投资机会，特别是私营医疗服务领域。
Continue Reading 大力发展私营医疗服务：挑战还是机会？

By Sidney Qin and Yang Xiaoli  King & Wood Mallesons’ Compliance Group

Overview: Promoting products or services by advertising and other forms of propaganda (“Advertising Behavior”) has always being crucial for emerging retail brands to build their brand image, increase sales and secure market share. It is not rare for authorities in China to challenge retailers for improper Advertising Behavior, but how many of the retail market players have bothered to watch their steps in the various ways of conducting advertisements and propaganda in China?
Continue Reading Retailers Beware: Be Careful with How You Advertise Your Products in China

By King & Wood Mallesons’ Compliance Group

On December 26, 2012, the Supreme People’s Court and the Supreme People’s Procuratorate jointly released the “Interpretation on Certain Issues Concerning the Application of Law in the Handling of the Criminal Cases of Offering Bribes“(the “Interpretation”). This Interpretation comes into effect as of January 1, 2013. The Interpretation specifies how the relevant provisions of the Criminal Law pertaining to the offering of bribes are to be applied.

The crime of offering bribes refers to the crime of offering money or property in kind to a state functionary with the intent to acquire illegal enrichment or interest. According to relevant provisions in the Criminal Law, state functionaries are persons who perform public service in state bodies, state-owned companies or, enterprises, institutions or people’s organizations. Additionally, persons who are assigned by state bodies, state-owned companies, enterprises or institutions to non-state-owned companies, enterprises or institutions to perform public service, and other persons who perform public service according to the law, shall all be regarded as state functionaries.
Continue Reading Briefing Notes: “Interpretation on Certain Issues Concerning the Application of Law in the Handling of the Criminal Cases of Offering Bribes”

作者：金杜律师事务所法律合规组

2012年12月26日，最高人民法院、最高人民检察院发布了《关于办理行贿刑事案件具体应用法律若干问题的解释》（“《解释》”）。该《解释》自2013年1月1日起实施，对《刑法》行贿罪相关条款的具体适用做出了明确地说明。

 行贿罪是指为谋取不正当利益，给予国家工作人员以财物的犯罪。而根据《刑法》相关规定，国家工作人员指在国家机关中从事公务的人员。国有公司、企业、事业单位、人民团体从事公务的人员和国家机关、国有公司、企事业单位委派到非国有公司、企业、事业单位、社会群体从事公务的人员，以及其他依照法律从事公务的人员，以国家工作人员论。
Continue Reading 《关于办理行贿刑事案件具体应用法律若干问题的解释》概要

By Susan Ning, Li Rui and Hazel Yin

On January 5th, 2013, the Xi’an Intermediate People’s Court (the “Court”) ruled in favor of a consumer who sued Shanxi Broadcast & TV Network Intermediary (Group) Co., Ltd. (“Network”), the local cable service provider, for tie-in and imposing unreasonable sales conditions by tying basic cable services with digital channel services. The Court found that the Network’s practice of selling basic cable services on the condition that the subscribers also purchase digital channel services violated Article 17(5) of the Anti-Monopoly Law (“AML”) regarding tie-in sales and imposition of unreasonable trade conditions. In reaching this decision, the court reasoned that because the Network is a lawful monopoly in the local market for cable TV, its conditioning of the sale of basic cable service on the customer’s subscription for digital channels infringes upon the customer’s freedom of choice and diminishes consumer welfare.
Continue Reading Chinese Consumer Wins Abuse of Dominance Civil Action against Tie-in Sales in Program Bundling

By Susan Ning, Kate Peng, Pulcheria Chung and Karen Ji

China’s Supreme People’s Court (“SPC”) issued its Provisions on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Conduct (“SPC rules”) on May 3, 2012, effective on June 1, 2012.  Article 7 of the SPC rules differentiates between horizontal and vertical monopolistic agreements with regard to the plaintiff’s burden of proof on the element of anti-competitive effect.  Horizontal monopolistic agreements falling within Article 13 of the AM are presumed to have the effect of eliminating or restricting competition, unless the defendants can demonstrate otherwise.  For vertical monopolistic agreements under Article 14 of the AML, no such presumption will be made. 

By implication, the above differentiation would mean that the plaintiff in a vertical monopolistic claim must prove (1) the monopolistic agreement falls within Article 14 of the AML; (2) the agreement has anti-competitive effects; (3) it suffered damages because of the monopolistic conduct.  Whereas the plaintiff in a horizontal monopolistic claim only needs to prove item (1) and (3) abovementioned, and the defendant has the rebuttal burden to prove that the agreement would not eliminate or restrict competition.
Continue Reading Burden of Proof in Monopolistic Agreement Claims