金杜律师事务所商标组
未注册商标能否成为特许经营合同标的？长久以来争论不休。正方观点认为，未注册商标是特许人的无形财产，只要被特许人认可其经济价值，即可成为特许标的。反方观点认为未经注册，特许人未在法律上获得商标所有权，因此未注册商标不能作为特许人的经营资源而被许可给他人。国务院2007年2月6日颁布的《商业特许经营管理条例》明确把注册商标、企业标志、专利、专有技术列为特许人拥有的可许可给其他经营者使用的经营资源，但并未提及未注册商标。不过，与此同时，该《条例》又以“等经营资源”的表述方式留出解释空间。
By Xianjie Ding and Di Yao King & Wood’s IP Legal Group
New developments in e-commerce regulation bring the issue of intellectual property infringement and the liability of e-commerce operators to light. A landmark case in China removed the defence of the "Safe Harbor Principle" for the first time, and should serve as an admonition to online platforms
The rise of e-commerce in China
In 2011, the e-commerce business in China underwent major changes. After significant amounts of private equity (PE) investments and many successful initial public offerings (IPOs) on the New York Stock Exchange (NYSE) or NASDAQ, e-commerce operators have increased resources to develop their business strategies. They are no long playing a neutral role by providing a merely technical and automatic processing of the data (for example, merely providing space for a blog, etc.) but marketing aggressively as a real internet value-added service provider (for example, providing services in building up or optimising a member’s own website, etc.). This change in role will lead to great legal challenges in the future in the area of trade mark infringements committed on an e-commerce operator’s platform. This article will introduce two high-profile online trade mark infringement cases in both the EU and China, and offer an analysis of the implications on the development of e-commerce.
Susan Ning and Ding Liang
On December 16, 2011, the Beijing Lawyers Association organized a seminar inviting Mr. Zhou Zhigao, an official from the Price Supervision, Inspection and Anti-monopoly Bureau (Price Supervision and Anti-monopoly Bureau) of the National Development and Reform Commission (NDRC), to speak on anti-price monopoly legislation and enforcement.
Continue Reading NDRC Doubles Its Antitrust Enforcement Force
By Susan Ning, Ji Kailun and Yin Ranran
On December 12th, 2011, the Ministry of Commerce ("MOFCOM") conditionally approved the acquisition of the hard disk drive ("HDD") business of the Korean Samsung Electronics ("Samsung") by the US Seagate Technology ("Seagate")1. This is the 4th conditional approval of this year and the 10th conditional approval by MOFCOM since China’s Anti-Monopoly Law ("AML") entered into effect in 2008.
According to MOFCOM’s announcement, this review process lasted for almost 7 months starting from May 19th when the notification was first submitted to MOFCOM. The review process entered into the Extended Phase II and was cleared on the next business day of the expiry date of this phase.2
Continue Reading With Conditions, MOFCOM Clears Seagate/Samsung Deal
By Susan Ning and Ding Liang
On November 14, the National Development and Reform Commission ("NDRC") announced its decision to fine two private pharmaceutical companies nearly RMB 7 million for violating the Anti-monopoly Law (AML) (please see our previous article entitled NDRC Fined Two Pharmaceutical Companies for Abusive Conducts). The NDRC’s news release did not clearly indicate which article(s) of the AML the two companies have violated and the method the NDRC adopted to calculate the fine.
On December 16, Mr. Zhou Zhigao, an official from the NDRC’s Price Supervision, Inspection and Anti-monopoly Bureau discussed the reasoning behind this case in a seminar. According to Mr. Zhou, the two pharmaceutical companies were fined under Article 17(3) of the AML because they abused their dominance by refusing to deal with reserpine manufacturers. He also discussed the method used in that case to calculate the fine.
Continue Reading NDRC Official Speaks on the Pharmaceutical Case
By You Yang and Lin Kaiyi King & Wood’s Real Estate Group
A real estate pooled investment fund ("RE Pooled Fund") is where trust companies raise funds from investors (who act as both "settlors" and "beneficiaries" in the trust) and work with real estate developers to provide beneficiaries with profits in return. RE Pooled Funds generate returns through specific assets, equity investments, loans, or a hybrid thereof.
With housing purchase restrictions being implemented in China’s major cities, real estate developers working with trust companies are facing serious cash flow pressure and some of them have even experienced operating difficulties. When real estate developers are unable to provide trust companies with high investment returns on schedule, and investors continue to hold expectations of high returns regardless of investment risk, trust companies are inclined to pay investors at their own expense and solve investment return problems with real estate developers internally rather than disclose investment risk to the investors. This is partly because trust companies value their reputation and the reputation of their investment products and want to avoid upsetting trustees and commercial banks who engage in selling the trust company’s products. Trust companies may also be concerned about the potential for class-action lawsuits by investors. However, such trust companies may one day be unable or unwilling to pay investors out of their own pockets, or investors may no longer be satisfied with being paid investment returns, leading to a very unsustainable situation.
Continue Reading Risk Management for China’s Real Estate Pooled Investment Funds (Part I of II)
房地产集合资金信托产品是指信托公司从多个委托人（也是“投资人”，相对于单一信托而言）处募集资金，用于与房地产公司合作开发房地产项目，获得收益后支付给委托人作为投资回报的信托计划，常见形式有特定资产收益型、股权投资型、贷款型以及复合型等。
伴随近期全国各主要城市商品房限购政策的出台和执行，不少处于信托计划中的房地产开发商面临着非常严峻的现金流压力，部分公司已经陷入经营困境。当这类房地产开发商没有能力向信托公司按期支付高额投资回报时，投资人却不愿面对投资风险，执着的向信托公司讨要预期回报，信托公司虽然有苦难言，却又不愿公开披露风险，惟恐得罪投资人和代理销售信托产品的商业银行，更不愿酿成集体诉讼，断了将来继续发行信托产品的信誉和财路，只能自己掏腰包堵上投资人的窟窿，再内部消化与房地产开发商的那些理不清的纠葛。试想一下，如果有一天信托公司再也没有能力或者不想堵投资人的窟窿，又或者投资人的风险意识、维权意识觉醒，不再满足于被敷衍的支付投资回报，转而追究事实真相和责任，事态将会如何发展？这样的平静还能继续维持吗？
金杜律师事务所外商直接投资组
继上海、北京、重庆出台外商投资股权投资企业试点文件后，天津的QFLP(合格境外有限合伙人)试点工作也已展开。2011年11月15日，天津市发展和改革委员会、天津市人民政府金融服务办公室、天津市商务委员会、天津市工商行政管理局联合发布《关于本市开展外商投资股权投资企业及其管理机构试点工作的暂行办法》("《办法》")及其实施细则。 《办法》对由外商投资的股权投资基金和股权投资基金管理企业的设立、资金募集和投资、风险控制、信息披露、备案管理等方面进行详细规范，同时鼓励该试点在天津滨海新区先行先试。
金杜律师事务所知识产权组
历时三年之久的麒麟协和食品株式会社与陈某某、王某商标权转让合同纠纷一案日前终于一审审理终结。原告麒麟协和食品株式会社是“可得然”中文商标的商标权人，由上海欧卡内实业有限公司（“欧卡内公司”）代理其在中国销售可得然胶。2006年3月，被告欧卡内公司法定代表人陈某某向国家商标局抢先申请注册“可得然”的英文译音“CURDLAN”商标。双方于2007年签订《商标权转让合同》，约定被告将“CURDLAN”商标以2000美元的价格转让给原告。2008年5月，国家商标局以“转让人使用的签字与以前在商标局办理商标事宜时使用的签字明显不符”为由，要求原告补充提供转让人的身份证件（复印件）以及经公证的转让人同意转让的声明，因被告一直未予提供，导致商标局对“CURDLAN”商标转让不予核准，原告诉诸法院。
By Liu Xinyu and Gao Xiaorui King & Wood’s International Trade Group
Improper commodity classification in customs declaration may cause different legal liabilities. This article will begin the analysis with two cases.
Case 1: A large-scale foreign-investment enterprise ("Enterprise A") imported 72.6 tons of ethylene powder from Germany, and made a customs declaration in the name of ethylene powder with a commodity code ("HS code") of 29,012,100. Later, the customs office extracted samples from the declared goods for inspection. The laboratory identification report issued by the customs laboratory center revealed that the materials were actually a type of polymer with the main ingredient being vinyl acetate, and the proper corresponding HS code was 39052900. Through further investigation, the customs office found that Enterprise A had imported the same materials as "ethylene powder" three times. The customs office finally determined that Enterprise A’s acts constituted false declarations, and imposed administrative penalties on Enterprise A in accordance with relevant laws.
Case 2: According to a news report, the merchandiser of a well-known foreign-funded enterprise ("Enterprise B"), when scrutinizing Enterprise B’s former declaration materials for imported raw materials, found that the beginning of the HS code on the commercial invoice was 3302 rather than 1302, the correct beginning of HS code for the imported raw materials. Imported materials with HS codes 1302 and 3302 were levied different customs duties of 20% and 15%, respectively. HS code 1302 was the correct coding for imported materials by Enterprise B and the merchandiser was aware of the fact. However, Enterprise B continued to use the original commodity code when filing customs declaration for the imported materials, and carried out this misconduct for the next 30 months. Finally, the customs anti-smuggling department discovered Enterprise B’s acts and determined Enterprise B had evaded customs duties amounted to over RMB 1 million. Finally, a lawsuit was instituted by the competent procuratorate before the courts.
Continue Reading Legal Liabilities from Improper Product Classification in Customs Declarations
