By Susan Ning, Liwei Wang and Hazel Yin

On 27 December 2011, the Ministry of Commerce ("MOFCOM") made a press release on its major merger enforcement work in 2011.1  Mr. Shang Ming, Director General of MOFCOM’s Anti-monopoly Bureau and Chairman of the General Office of the State Council’s Anti-monopoly Commission, gave a briefing at the press release and responded to press inquiries.

According to Mr. Shang, from January to mid-December, 2011, MOFCOM received a total of 194 merger control filings, an increase of 43% compared to the same period last year. Among the received filings, 179 filings have been accepted and 160 filings have been reviewed and closed.

Of the 160 closed cases, 151 cases were granted unconditional approval (94%), 4 cases were granted conditional approval (3%), and 5 cases were withdrawn by the applicants after case acceptance (3%). A breakdown of the filings by the industrial classification for national economic activities is as follows:

Continue Reading AMB Director Shang Ming Speaks on Merger Enforcement in 2011

By Susan Ning and Yun Wang

On 29 December 2011, the Ministry of Industry and Information Technology ("MIIT") finally promulgated the Various Provisions on Regulating the Order of Internet Information Service Market ("Rules").  Viewed by many as been driven by the QQ/360 disputes in late 2010, the Rules mainly set out the code of conducts for an internet information service provider ("IISP") vis-à-vis its competitors and consumers. The Rules also create a dispute resolution mechanism between IISPs.

Continue Reading MIIT Finalizes Rules Governing Competition in Internet Industry

By King & Wood’s Trademark Group

In March, the leading domestic industrial recorder enterprise Hangzhou Pangu Automation Systems Co., Ltd. ("Pangu Ltd.", 杭州盘古自动化系统有限公司) found that searching on www.baidu.com ("Baidu", 百度公司) for "Pangu recorders (in Chinese)" etc. returned results heading "Pangu recorder professional manufacturer Hangzhou Mengkong instruments www.mkong.com.cn (in Chinese)", and clicking the link leads to the website of Hangzhou Mengkong Instrument Technology Co., Ltd. ("Mengkong", 杭州盟控仪表技术有限公司).

Continue Reading First Instance Court Finds that Internet Keywords Constitute Infringement by Using Unauthorized Trademark

作者：金杜律师事务所商标组

今年3月，国内工业记录仪龙头企业杭州盘古自动化系统有限公司，发现在百度网站www.baidu.com搜索“盘古记录仪”等时，返回的搜索结果的第一条的标题为“盘古记录仪专业生产厂家，杭州盟控仪表www.mkong.com.cn”，点击后即进入杭州盟控仪表技术有限公司)的企业网站。

盘古公司早在2002年10月14日就已经在“集成仪表；工业自动化控制系统”商品上注册了“PG图+PANGU+盘古”文字图形组合商标（如下图所示）。

Continue Reading 一审认定将他人商标设为网络搜索关键词构成商标侵权

By King & Wood’s Securities Group

Following the promulgation of the Notice on Further Regulating the Administration of Development and Filing of Equity Investment Enterprises in Pilot Areas (the "Pilot Rules") by the National Development and Reform Commission (the "NDRC") on 31 January 2011 and positive feedback from the six pilot areas, the NDRC is now determined to apply its administration and filing system to equity investment enterprises ("EIEs") across the nation. 

On November 23, 2011, the NDRC promulgated its first set of nationwide rules on the administration of equity investment enterprises, the Notice on Promoting Regular Development of Equity Investment Enterprises (the "Notice"). The main objective of the Notice is to standardize the establishment and operation of private equity funds.  This Notice evolved from the Pilot Rules and has addressed five major topics.  Together with the Notice, the NDRC also issued a set of forms for filing and guidance for EIEs’ constitutional documents (i.e. guidance on articles of association/partnership agreement of EIEs, guidance on the fund raising prospectus, etc.).

Continue Reading NDRC Standardizes Private Equity Funds Filing System

King & Wood’s Intellectual Property Group

In recent years, the world has witnessed several milestone events signaling the arrival of a new generation of global internet companies. Apart from the much-hyped dawn of social media, there is a much broader trend taking place, one that has outgrown the traditional boundaries of the tech sector itself. “In short,” as Marc Andreessen wrote in a recent Wall Street Journal column, “software is eating the world.” As corresponding developments are happening in China, this new era has caused and will continue to cause dramatic implications on the monitoring and enforcement of intellectual property rights in the country.

Continue Reading Enforcing Intellectual Property Rights in the Next Internet Era

By Susan Ning, Sun Yiming and Hazel Yin

It was reported 1 that on December 15, 2011, the Intermediate Court of Changsha, Hunan Province dismissed a consumer’s complaint that automobile producer Dongfeng Nissan and its 4S store 2 abused their dominant position in violation of China’s Anti-monopoly Law ("AML") by reaping exorbitant profits and expelling their competitors.  The case was originally filed in November 2010 and the court hearing was held in May 4, 2011.  It is the first antitrust lawsuit in the automobile industry and yet another defeated attempt by Chinese consumers in bringing AML private actions.

The plaintiff, Mr. Liu Dahua, is a Nissan car owner.  In October 2009, He had his car repaired at a local 4S store of Nissan.  Finding that the 4S store charged much higher price for repair services than other local auto repair factories, Mr. Liu asked the 4S store to sell the spare parts separately so he could do the repairs elsewhere.  However, the 4S store turned down his request saying that Dongfeng Nissan did not allow its 4S stores to sell spare parts alone, meaning that customers could only purchase the spare parts as well as the repair services together from Dongfeng Nissan’s 4S stores.

Continue Reading Consumer Lost Antitrust Action against Dongfeng Nissan

By King & Wood’s Finance Group

The China Banking Regulatory Commission (the "CBRC") issued Guiding Opinions of the China Banking Regulatory Commission on the Implementation of the New Regulatory Standards by the Chinese Banking Industry (Yin Jian Fa [2011] No. 44) (the "Guiding Opinion") on April 27, 2011, which clearly creates new rules for liquidity and capital held by banks in accordance with the "Basel Accord III" ("Basel III"), and on the basis of comprehensively assessing the effectiveness of the current prudent regulatory system, to improve the capital adequacy ratio, leverage ratio, liquidity, loan loss reserve and other regulatory standards. The four new regulatory standards for capital listed above will be implemented on January 1, 2012.

Continue Reading New Capital Requirements for Banks Postponed

作者：金杜律师事务所融资组

中国银行业监督委员会（“银监会”）于2011年4月27日发布了《中国银监会关于中国银行业实施新监管标准的指导意见》（银监发[2011]44号）（“《指导意见》”），明确将根据《第三版巴塞尔协议（Basel III）》确定银行资本和流动性监管新制度，在全面评估现行审慎监管制度有效性的基础上，提高资本充足率、杠杆率、流动性、贷款损失准备等监管标准，并提出上述四项新资本监管标准从2012年1月1日开始执行。

Continue Reading 商业银行资本监管新规暂缓实施

By King & Wood’s Trademark Group

There has been a long debate on whether an unregistered trademark can be the subject of a franchise contract in China. Proponents argue that an unregistered trademark is the franchiser’s property and is thus eligible for being franchised so long as it is of economic value in the eyes of the franchisee. Opponents of this argument see an unregistered trademark as not legally owned by a franchiser without going through the trademark registration process and therefore not eligible for being licensed in a franchise contract. The Regulation on Administration of Commercial Franchises ("Regulation on Franchises") (商业特许经营管理条例) enacted by the State Council of the PRC on February 6, 2007, while clearly including registered trademarks, enterprise marks, patents and know-how into the checklist of business resources that a franchiser "possesses" for franchising, fails to touch on the issue of unregistered trademarks. However, it leaves room by putting the catch-all of "any other business resource" undefined.

Continue Reading An Unregistered Trademark is Formally Franchisable in Beijing