China: Protection For Prior Copyright In Trademark Disputes - 2016-04-18

Last Updated: 15 June 2016
Article by Jason Wang and Fei Fei Bian

I. Prior copyright: an important aspect with various advantages to claim against the trademark at dispute

1. An important aspect to claim prior rights

In the recent practice, the famous carmaker Tesla Motors, Inc. filed two civil lawsuits in China in September 2013 before Beijing Third Intermediate Court, against ZHAN Bao Sheng. ZHAN is the registrant of the disputed trademark of the "TESLA TESLA MOTORS and T Design" in China, where Tesla Motors, Inc. has filed disputed cancellations before the Trademark Review and Adjudication Board (TRAB) as well. In one of the civil lawsuits, Tesla Motors, Inc. claimed its prior copyright of the "T Design." According to the news report, all the trademark disputes and copyright disputes between Tesla Motors, Inc. and ZHAN have already been settled before Beijing Third Intermediate Court in August 2014.1 In addition, in the successful disputed cancellations against the disputed trademarks before the TRAB, Tesla Motors, Inc. should have also claimed its prior copyright. Undoubtedly, the claim of prior copyright has become one of the key factors and weapons for Tesla Motors, Inc. to successfully clear its major trademark obstacles to the entry of huge China market.

In fact, according to the Chinese Trademark Law and other regulations as well as practice in China, prior copyright may be a very important aspect to claim against the trademark at dispute in the trademark disputes. Quite a large portion of trademark disputes involves the claim of prior copyright.

With respect to the laws and regulations, the first part of Article 32 of the Chinese Trademark Law 2013 (Article 31 of the Chinese Trademark Law 2001) prescribes as follows: "An trademark application for registration shall not create any prejudice to the existing prior right of another person." The Trademark Adjudication Standard promulgated jointly by the Chinese Trademark Office (CTMO) and the Trademark Review and Adjudication Board (TRAB) in 2005 has expressly prescribed that the "exiting prior right" includes the copyright, in addition to trade name, design patent, right of name, right of portrait, etc. acquired prior to the application date of the trademark at dispute. In addition, Rule 17 of the Supreme Court Opinions regarding Administrative Cases of Trademark Rights Granting and Determination (Fa Fa201012) prescribes as follows: "The summarizing provision of Article 31 of the Chinese Trademark Law 2001, namely, an trademark application for registration shall not create any prejudice to the existing prior right of another person, shall be correctly understood and applied. When examining and determining whether the disputed trademark creates any prejudice to the prior right of another person, the court shall protect the prior rights which are specifically provided under the Chinese Trademark Law pursuant to the specific provisions thereof. Where the Chinese Trademark Law is silent, the legitimate right to be protected pursuant to the General Principles of Chinese Civil Law and other laws and regulations shall be protected pursuant to this summarizing provision. "

In Tianjin Yi Hong Science and Technology Services Co., Ltd. vs. China ICBC Co., Ltd. vs. the TRAB case regarding the "ICBC Design," the Supreme Court held in 2012 that if the subject meets the requirements of both the Chinese Trademark Law and the Chinese Copyright Law, such subject may be protected by both laws. 2

2. Automatic protection without registration

Article 2 of the Chinese Copyright Law prescribes as follows: "Work of Chinese citizens, legal persons or entities without legal personality, whether published or not, shall enjoy copyright in accordance with this Law." Furthermore, Rule 6 of Implementing Regulations for the Chinese Copyright Law prescribes as follows: "The copyright comes into being on the date of the completion of the work."

Based on the above laws as well as the practice in China, the protection of copyrighted work is not preconditioned on registration. And the protection of copyrighted work is protected if evidence may establish that the work has been created or published prior to the application date of the trademark at dispute, and the law does not compulsorily require whether it has been registered or not.

Compared with the trademark, the copyright has the advantage of being granted for automatic protection without registration, and such automatic protection is based on creation or publication, not necessarily based on registration. Even if the work has not gone through the registration procedure with the relevant authorities or organizations, it is still possible to prove its ownership and rights through evidence regarding creation or publication of the work. Of course, although the copyright protection is based on creation or publication of the work, not necessarily based on registration, the registration of copyrighted work will definitely facilitate the evidence establishment proving the copyright ownership, which may serve as prima facie evidence.

3. Automatic protection for cross-jurisdiction

Article 2 of the Chinese Copyright Law prescribes as follows: "Work of foreigners first published in the territory of China shall enjoy copyright in accordance with this Law. Any work of a foreigner published outside the territory of China which is eligible to enjoy copyright under an agreement concluded between the country to which the foreigner belongs and China, or under an international treaty to which both countries are parties, shall be protected in accordance with this Law."

According to the Chinese Copyright Law as well as the Berne Convention, work published either in China or U.S. or any other contracting members of the Berne Convention will be automatically protected. Obviously, the characteristic of cross-jurisdiction for the copyrighted work is an advantage for the rights owner, compared with the trademark which is greatly limited to jurisdiction.

4. Strong protection for cross-Class

The protection of prior copyright breaks through the limitation imposed by the Classification of Similar Goods and Services promulgated by the CTMO based on the Nice Classification. Theoretically speaking, cross-Class protection granted to the copyrighted work may be extended to all the 45 Classes, which is even broader than the protection scope of the well-known trademark. In addition, Chinese authorities (the CTMO, the TRAB, and the courts) impose very strict requirements on the well-known trademark recognition, and the trademark right owners bear a very heavy burden of proof to establish that their trademarks have achieved the well-known status in China.

Of course, protection for prior copyright in trademark dispute cases is a controversial topic both academically and in legal practice. But currently, the prevailing view and practice in China is that the copyright protection may be granted for cross-Class protection with little limitation. Compared with the well-known trademark, the claim of prior copyright seems more helpful to protect the owner's rights and more feasible to crack down on the bad faith trademark filing.

II. Key issues and factors to be considered

In the Ritz-Carlton Hotel Company, L.L.C. vs. Shi Shi City Bao Hu Nan Hua Daily Necessities Store vs. the TRAB case regarding the "Lion and Crown Design," both Beijing First Intermediate Court (the first instance court) and Beijing High Court (the second instance court) reversed the TRAB decision, and the courts recognized that the Ritz-Carlton Hotel Company, L.L.C. owned prior copyright on its "Lion and Crown Design," and thus the application of the disputed trademark violated Article 31 of the Chinese Trademark Law 2001 (Article 32 of the Chinese Trademark Law 2013).3 This case may be very typical to reflect the usual way how the courts recognize the prior copyrighted work and to reflect factors the courts take into consideration, to grant protection for prior copyright in the trademark dispute cases. Specifically, Beijing First Intermediate Court held that the following conditions should be met when determining the infringement upon the prior copyright: (1) The subject matter claiming for copyright protection should be the copyrighted work in the sense of the Chinese Copyright Law; (2) The copyrighted work is still in the period of protection; (3) The applicant or registrant of the disputed trademark has the possibility of having access to the copyrighted work; (4) The disputed trademark constitutes substantially similar to the copyrighted work; (5) The creation of the copyrighted work is prior to the application date of the disputed trademark.

Based on the facts ascertained, the court held as follows:

First, the "Lion and Crown Design" claimed by the Ritz-Carlton Hotel Company, L.L.C. is an artistic expression to the lion head, which is distinctive, and can be duplicated. Thus, the "Lion and Crown Design" falls under scope of copyrighted work protected by the Chinese Copyright Law. Meanwhile, such work is still in the period of protection.

Second, according to the facts ascertained by the court, prior to the application date of the disputed trademark, the trademarks containing the copyrighted work have been approved for registration and published in other countries and regions. In the absence of evidence to the contrary, it is reasonable to presume that the registrant of the disputed trademark may have access to such copyrighted work.

Third, the design part contained in the disputed trademark is identical to the copyrighted work owned by the Ritz-Carlton Hotel Company, L.L.C., and the creation date of such work is earlier than the application date of the disputed trademark.

As for the CTMO and TRAB, the practice and rules are similar to the courts. Rule 3.2 (Application Requirements) of the Trademark Adjudication Standard prescribes as follows: (1) The trademark at dispute is identical or substantially similar to the prior copyrighted work. (2) The applicant/registrant of the trademark at dispute had access or has the possibility of having access to the copyrighted work owned by others. (3) The application for registration of the trademark at dispute is not authorized by the copyright owner.

Based on the above regulations and the practice in China, the key issues related to the prior copyright protection in the disputes concerning design trademarks may be as follows: (1) Originality standard of recognizing a sign as the copyrighted work; (2) Evidence proving the ownership including prior creation date and/or publication date of the copyrighted work; (3) Similarity between the copyrighted work and the trademark at dispute; (4) Evidence proving the applicant/registrant of the trademark at dispute has the possibility of having access to the copyrighted work. The later section of this article will analyze the four key issues separately.

Ⅲ. First issue: Originality standard of recognizing a sign as the copyrighted work

Rule 21 of Beijing High Court Guidelines for Trial of Administrative Cases concerning Trademark Right Granting and Determination promulgated in January 2014 prescribe as follows: "It shall be determined in accordance with the Chinese Copyright Law, on whether a trademark sign constitutes a work." Therefore, the key issue to recognize a sign as the copyrighted work is the originality. Below are some of the typical cases.

(1) SANYO and N Design

In Sanyo Electronic Co. Ltd. vs. Chengdu Ling Linto Industrial Co., Ltd. vs. the TRAB case regarding the "SANYO and N Design," both the TRAB and Beijing First Intermediate Court held that the cited prior trademark of "SANYO and N Design" in its entirety is not confusingly similar to the opposed trademark of "LINTO and N Design." However, Beijing First Intermediate Court reversed the TRAB decision, and held that the "N Design" contained in the "SANYO and N Design" is copyrighted work and recognized Sanyo Electronic Co. Ltd. owned prior copyright on the "N Design," and rejected the registration for the opposed trademark based on that ground.4

(2) CAMEL (stylized)

In Japan Tobacco Inc. vs. WAN Jin Gang vs. the TRAB case regarding the "CAMEL (stylized)" sign, Beijing High Court held the view that the "CAMEL (stylized)" sign claimed by Japan Tobacco Inc. is copyrighted work according to the Chinese Copyright Law, based on the following grounds: First, there is no evidence proving that the "CAMEL (stylized)" sign is in block letter. Second, those English letters bear distinctive characteristics and are arranged in the form of an arch. Here, Beijing High Court held a view different from Beijing First Intermediate Court and the TRAB on the originality of the "CAMEL (stylized)" sign. Of course, Beijing High Court did not support the copyright claims of Japan Tobacco Inc. based on the ground that Japan Tobacco Inc. failed to submit the evidence showing the ownership of such "CAMEL (stylized)" sign.5

In addition, Beijing High Court held the view that the standard on originality for the copyrighted work shall not be too high, which is opposite to the view of Beijing First Intermediate Court in this specific case. Beijing High Court also held the view that the granting of protection for copyrighted work will not adversely affect the trademark law system. Furthermore, the logic behind the specific judgment rendered by Beijing High Court is as follows: The higher the degree where the signs are identical or confusingly similar, the lower requirement on originality is imposed.

(3) B Design

In Foshan City Shunde District Ming Bang Chemical Industrial Co., Ltd. vs. Bridgestone Corporation vs. the TRAB case regarding the "B Design," the TRAB, Beijing First Intermediate Court and Beijing High Court all held that the "B Design" has certain originality and is copyrighted work.6

(4) FJ Design

In Ningbo Fu Jia Electron Electrical Appliances Co., Ltd. vs. Ningbo Fu Da Share Stock Co., Ltd. vs. the TRAB case regarding the "FJ Design," the TRAB and Beijing High Court both held the view that the design contained in the "FJ Design" is copyrighted work.7

(5) Kievit and Bird Design

In Shantou City Longhu District Jin He Food Industry Co., Ltd. vs. Friesland Brands B.V. vs. the TRAB case regarding the "Kievit and Bird Design," the TRAB, Beijing First Intermediate Court, and Beijing High Court all held that the "Kievit and Bird Design" is copyrighted work, specifically: Admittedly, the design of kiwi bird is the depicture of the bird species in nature, and "Kievit" is the commonly known name for kiwi bird. However, the design of kiwi bird has established its originality despite of the simple technique of expression thereof. In addition, while being the common name of one specific bird, the word "Kievit" is also the family name of the founder of Zuivelfabriek De Kievit B.V. (former entity of Friesland Brands B.V.) and the trade name of Zuivelfabriek De Kievit B.V. The design of kiwi bird and the artistic calligraphy of Keivit are combined to constitute a complete work which should be protected by the laws.8

(6) Sollatek (stylized)

In Wenzhou Tian Shi Electronic Appliance Co., Ltd. vs. Sollatek (U.K.) Limited vs. the TRAB case regarding the "Sollatek (stylized)" sign, both Beijing First Intermediate Court and Beijing High Court reversed the TRAB decision, and held that the "Sollatek (stylized)" sign is not copyrighted work.9

(7) Ettusais and Ettusais in Chinese (handwriting)

In Shiseido Co., Ltd. HONG Wei Hong vs. the TRAB case regarding the "Ettusais and Ettusais in Chinese (handwriting)" sign, Beijing First Intermediate Court held that neither "Ettusais (handwriting)" nor "Ettusais in Chinese (handwriting)" is copyrighted work, because they are not different from the commonly used handwriting.10

(8) Tim Hortons (handwriting)

In Tim Hortons International S. A. vs. Jinjiang Da Sen Clothing Co., Ltd. vs. the TRAB case regarding the "Tim Hortons (handwriting)" sign, the TRAB, Beijing First Intermediate Court and Beijing High Court all held the view that the English letters "Tim Hortons" (handwriting) are not copyrighted work as they lacks the originality.11

(9) és (stylized)

In Pierre-Andre SENIZERGUES vs. Shenzhen Mei Te Trading Co., Ltd. vs. the TRAB case regarding the "én (stylized)" sign, the TRAB, Beijing First Intermediate Court and Beijing High Court all held the "és" sign does not constitute the copyrighted work, as the form thereof is quite simple, although they are not in block letter.12

(10) Wei Long in Chinese and Wei Long (stylized)

In Ping Ping Food LLC of Luohe City vs. HUANG Jin Zhong and the TRAB case regarding the "Wei Long in Chinese and Wei Long (stylized)" sign, both Beijing First Intermediate Court and Beijing High Court reversed the TRAB decision, and held that the "Wei Long in Chinese and Wei Long (stylized)" sign is not copyrighted work.13

Ⅳ. Second issue: Evidence proving the ownership including prior creation date and/or publication date of the copyrighted work

First, there are different types of evidence proving the ownership of the copyrighted work. Article 11(4) of the Chinese Copyright Law prescribes as follows: "If no proof to the contrary is available, the citizen, legal person or other organization whose name affixed to a work shall be the author." Rule 7 of the Supreme People's Court Interpretations on Several Issues Relating to Application of Law to Trial of Civil Dispute Cases of Copyright prescribes as follows: "Documents concerning copyright, such as manuscript, original copy, legitimate publication, copyright registration certificate, certification issued by certifying organization or agreement regarding ownership, can serve as evidence of copyright." Rule 22 of Beijing High Court Guidelines for Trial of Administrative Cases concerning Trademark Right Granting and Determination prescribes as follows: "Design manuscript of the trademark sign, copyright registration certificate, entrustment agreement of trademark sign design, copyright assignment agreement can be used as prima facie evidence to determine the copyright ownership on the trademark sign."

Second, evidence proving the prior creation date and/or publication date of the copyrighted work is also crucial. Rule 17 of the Supreme Court Opinions regarding Administrative Cases of Trademark Rights Granting and Determination (Fa Fa201012) prescribes as follows: "When adjudicating on whether the trademark at dispute creates prejudice to the existing prior right of another person, the court usually refers to the application date of the trademark at dispute."

In practice, evidence proving the copyright ownership including prior creation date and/or publication date of the copyrighted work may be mainly as follows:

1. Copyright registration certificate: prima facie evidence

Under Chinese laws and practice, the copyright of the work registered in either U.S. or China or any other contracting members of the Berne Convention may be used as prima facie evidence of the copyright ownership.

On the one hand, according to the practice, if the issuance date of the copyright registration date is earlier than the application date of the trademark at dispute, credibility of such copyright registration certificate as evidence should be strong. If the issuance date thereof is later than the application date of the trademark at dispute or even later than the filing date of the opposition or invalidation, credibility will be lowered, and such copyright registration certificate alone may probably not be sufficient to prove the copyright ownership. For example, Rule 23 of Beijing High Court Guidelines for Trial of Administrative Cases concerning Trademark Right Granting and Determination promulgated in January 2014 prescribes as follows: "Copyright registration certificate alone obtained after the filing date of a trademark opposition or invalidation application is insufficient to prove the ownership of the copyright of such work." In this situation, in order to establish the copyright ownership, the copyright registration certificate shall usually be combined with other evidence such as prior trademark registration certificate, entrustment agreement or assignment agreement proving the copyrighted work has been created or published prior to the application date of the trademark at dispute.

In the above "Lion and Crown Design" case, the Ritz-Carlton Hotel Company, L.L.C. has submitted, among those evidence such as prior trademark registration certificates, the photocopy of copyright registration certificate of the "Lion and Crown Design" issued on February 19, 1998 by U.S. Copyright Office, indicating the work is created in 1992 and owned by the Ritz-Carlton Hotel Company, L.L.C. Both the issuance date of the copyright registration certificate and the creation date of the work are earlier than the application date (August 14, 2001) of the disputed trademark. However, the TRAB refused to recognize the Ritz-Carlton Hotel Company, L.L.C. as the copyright owner, based on the ground that such copyright registration certificate is in photocopy without notarization and legalization required by the Chinese laws. During the first instance proceeding, the Ritz-Carlton Hotel Company, L.L.C. supplemented the notarized and legalized copyright registration certificate. Both Beijing First Intermediate Court and Beijing High Court accepted such newly submitted evidence, and held that the Ritz-Carlton Hotel Company, L.L.C. owns the prior copyright on the work based on that evidence, in the absence of no other evidence to the contrary. Here, please note that the registration date for the copyright registration is earlier than the application date of the disputed trademark, not to mention the filing date of the disputed cancellation.

On the other hand, if the adversary presents the evidence to the contrary, or the information indicated on the copyright registration certificate exists substantial or reasonable doubts, ambiguity, or inconstancy, then the credibility of the copyright registration will be lowered, or such evidence will be discredited.

In the above "és (stylized)" case, both parties at dispute have submitted, during the first instance proceeding, copyright registration certificates issued by the Chinese Copyright Office for the same sign. The opponent Pierre-Andre SENIZERGUES submitted the copyright registration certificate issued on September 28, 2010 claiming the work is created by the opponent on February 1, 1995 in U.S., which is later than the application date (December 13, 2001) of the opposed trademark. In addition, the opposed party Shenzhen Mei Te Trading Co., Ltd. also submitted the copyright registration certificate issued on October 26, 2010, claiming the work is created on March 1, 1994 by a Chinese individual. In this situation, the court held that even if the sign constituted copyrighted work, it would be difficult to judge on the ownership in the absence of other relevant evidence.

2. Prior trademark registration certificate alone: different views on the credibility

Prior trademark registration certificate is the most frequently submitted evidence to prove the copyright ownership, no matter the trademark registration certificate is submitted alone or combined with the other evidence, because prior trademark registration certificate may be the easiest and convenient way to collect the evidence. Prior trademark registrations of the work can be used as supplementary evidence to prove the registrant is the copyright owner when used together with other evidence.

As for the prior trademark registrant certificate alone, there are different views and the practice of Chinese authorities changed during different periods.

At the early stage in around 2005, courts started to recognize the copyright ownership directly and solely based on the prior trademark registration certificate. For example, in Shanghai U. B. C. Coffee Food Co., Ltd. vs. CHEN Wen Min and Hangzhou U. B. C. Coffee Food Co., Ltd. case regarding the "U. B. C Coffee and Design", Beijing High Court recognized the copyright ownership based on the trademark registration certificate alone.14

However, since around end of 2009, courts started to deny the practice of recognizing the copyright ownership directly and solely based on the prior trademark registration certificate.

For example, in Fujian Shi Shi City Lao Ren Cheng Clothing Co., Ltd. vs. Hua Yuan Company vs. the TRAB case regarding the "Leonardo da Vinci portrait," the TRAB and Beijing First Intermediate Court held that Hua Yuan Company owns the prior copyright, based on its prior trademark registration and trademark gazette. However, Beijing High Court reversed the decisions of the TRAB and Beijing First Intermediate Court in December 2009. Beijing High Court held as follows: The information indicated on the trademark registration certificate and trademark gazette merely indicates the ownership of the trademark, and it is not the act of indicating the copyright ownership in the sense of the Chinese Copyright Law. Thus, prior trademark registration and trademark gazette is not sufficient to prove the copyright ownership.15

In Caramelo, S.A. vs. Guangzhou CANUDILO Clothing Inc. vs. the TRAB case regarding the "Ka Nu Di Lu in Chinese and CANUDILO and Design," both Beijing First Intermediate Court and Beijing High Court held in 2010 and 2011 respectively as follows: Trademark registration certificate itself is not sufficient to prove the trademark registrant is necessarily the owner of the copyrighted work contained in the trademark registration. "Signature" prescribed in Article 11(4) of the Chinese Copyright Law refers to the signature that indicates the identity of the author, conveying the denotation to the public that the signatory is the creator of the work. The information in relation to the trademark registrant indicated in the application for trademark registration and corresponding gazette only manifests the ownership of the right to the registered trademark, and shall not be the signaturing behavior which indicates the identity of the author of the work in light of the Chinese Copyright Law.16

In the above "Ettusais and Ettusais in Chinese (handwriting)" case, Beijing First Intermediate Court held in 2012 as follows: The trademark registration certificate itself is not sufficient to prove the trademark registrant is necessarily the owner of the copyrighted work contained in the trademark registration. Other evidence such as evidence produced in the process of creating the copyrighted work, evidence proving the publication of the work, assignment agreement, etc. shall be provided.

3. Prior publication and/or use of the work: an important aspect

Prior publication and/or use of the work is also an important aspect to prove the copyright ownership.

(1) Kievit and Bird Design

In the above "Kievit and Bird Design" case, the court ascertained the following facts: Zuivelfabriek De Kievit B.V. (former entity of the opponent Friesland Brands B.V.) designed a new commercial sign of "Kievit Bird Design and the artistic calligraphy of Keivit" in 1991. In 1994, Zuivelfabriek De Kievit B.V. compiled and published the publicity materials "The present lies in the past (1894-1994)," in order to commemorate the 100th anniversary of the company, and the "Kievit Bird Design and the artistic calligraphy of Keivit" sign has been labeled in various places in the picture album. On March 4 to 6, 1996, Zuivelfabriek De Kievit B.V. attended the Food Ingredients Asia held in Hong Kong, and unveiled its "Kievit Bird Design and the artistic calligraphy of Keivit" sign and products. The court held that evidence on hand in this case is sufficient to prove the opponent Friesland Brands B.V. enjoys the prior copyright on the work of "Kievit Bird Design and the artistic calligraphy of Keivit."

(2) Double Fish and Waved Lines

In South Sea Fishing Village Co., Ltd. vs. Zhejiang Shao Bing Co., Ltd. vs. the TRAB case regarding the "Double Fish and Waved Lines" sign, South Sea Fishing Village Co., Ltd. submitted the copyright registration certificate issued on May 25, 2006 (later than April 30, 2004, the application date of the opposed trademark) of the "Double Fish and Waved Lines" sign indicating the work is created on February 15, 1992 and published on August 20, 1992. During the first instance proceeding, South Sea Fishing Village Co., Ltd. further supplemented advertisement published by Guangzhou Daily dated February 18, 1987 which indicating South Sea Fishing Village Seafood Restaurant instead of South Sea Fishing Village Co., Ltd. as the user of the "Double Fish and Waved Lines" sign. Beijing First Intermediate Court refused to recognize its prior copyright based on the following grounds: First, the publication date (1987) of the advertisement is even earlier than the creation date (1992) shown on the copyright registration certificate. Second, no evidence is submitted to prove the relationship between South Sea Fishing Village Seafood Restaurant and South Sea Fishing Village Co., Ltd. During the second instance proceeding, South Sea Fishing Village Co., Ltd. further submitted the evidence proving South Sea Fishing Village Seafood Restaurant is the predecessor of South Sea Fishing Village Co., Ltd. Based on the new evidence, Beijing High Court reversed the judgment of Beijing First Intermediate Court and held as follows: Although the copyright registration certificate flawed in the creation date and publication date of the sign, the fact that South Sea Fishing Village has been using the sign and registered the sign as trademark can prove its prior copyright ownership. 17

(3) ALEPH Design

In Aleph Electronics (Shen Zhen) Co., Ltd. vs. WU Jian Gang vs. the TRAB case regarding the "ALEPH Design," Beijing First Intermediate Court ascertained the following facts: The company badge of Nippon Aleph (affiliated with Aleph Electronics (Shen Zhen) Co., Ltd.) associated with "NIPPON ALEPH" is published on Electronic Components Industry Guide dated September 26, 1984, which is prior to the application date (June 3, 1996) of the opposed trademark. The design part on the company badge published is exactly identical to trademark registration of Nippon Aleph in Japan. In addition, Nippon Aleph claims its copyright and trademark right regarding the work on Nikkan Kogyo dated November 9, 2010 and Yomiuri Shimbun dated November 12, 2010 after the application of the opposed trademark. Besides, Aleph Electronics (Shen Zhen) Co., Ltd. has also submitted the trademark registration certificate in Japan and copyright registration certificate. Therefore, both Beijing First Intermediate Court and Beijing High Court reversed the TRAB decision, and held that evidence submitted has formed a completed chain of evidence and Nippon Aleph's prior copyright on the work is established.18

4. Affidavit of the relevant entities: supplementary evidence

The relevant entities such as the previous copyright owner in the assignment agreement, the employee or designer in the service invention or entrustment agreement regarding the copyrighted work may issue an affidavit to testify its knowledge about the copyright ownership and/or process regarding creation of the work. However, since those relevant entities may be deemed as interested party closely related to the copyright claimant, the evidential effects are limited. And the affidavit usually can only be used as supplementary evidence, in support of other evidence such as photocopy of the entrustment agreement or assignment agreement while the original agreement is absent. In addition, written affidavit signed by those relevant entities alone is not sufficient. Instead, such affidavit needs to meet the credibility requirements as evidence. If the affidavit is made in China, it should be notarized with witness of two notary publics in China, to ensure its credibility as evidence. If the affidavit is made outside of China, then it shall be notarized by the local notary public and then legalized by the Chinese embassy or consulates in that region.

In the above "FJ Design" case, Beijing First Intermediate Court reversed the TRAB decision, and held that photocopy of the entrustment agreement of the sign and the manuscript of sign are not sufficient to prove the copyright ownership. During the second instance proceeding, Ningbo Fu Jia Electron Electrical Appliances Co., Ltd. supplemented a notarized written affidavit of the designer as one contracting party of the entrustment agreement, describing the process of the design and expressly declaring that Ningbo Fu Jia Electron Electrical Appliances Co., Ltd. owns the copyright on the sign. Based on the new evidence submitted, Beijing High Court held that evidence submitted by Ningbo Fu Jia Electron Electrical Appliances Co., Ltd. is sufficient to prove its ownership on the copyrighted work.

5. Effective decisions confirming the copyright ownership: acceptable as a principle but not acceptable as exceptions

According to Item (4), Paragraph 1, Rule 9 of Provisions of the Supreme People's Court on Evidence in Civil Proceedings, for any of the following facts, a party concerned shall be exempt from the burden of proof: (4) A fact confirmed by legally effective ruling of the people's court. Of course, Paragraph 2, Rule 9 thereof prescribes that Item (4) of Paragraph 1 thereof shall not apply if a party concerned produces evidence to the contrary to repudiate the fact mentioned therein. Rule 3.3 of the Trademark Adjudication Standard promulgated jointly by the CTMO and TRAB in 2005 prescribes as follows: "In the absence of evidence to the contrary, the facts confirmed in the effective decisions that the interested party enjoys prior copyright may be accepted."

Based on the above regulations and rules, the effective decisions in other cases confirming the copyright ownership will usually serve as evidence or at least as one aspect to prove the ownership on the copyright. However, there are some exceptions, or some other evidential requirements are imposed. The two cases below remind us of the importance of fully meeting the evidential requirements prescribed by the Chinese laws, even if there is a prior decision confirming the copyright ownership.

(1) Ultraman (China Courts 2013 Top 10 IP Case)

In Sompote Saengduenchai and Chaiyo Productions CoLtd vs. Tsuburaya Productions CoLtd, etc. copyright infringement case regarding "Ultraman," courts in Japan and Thailand have already rendered final judgments on effectiveness of the copyright license agreement, which is the key to determine the copyright ownership in the case at dispute in China. Japanese courts held the copyright license agreement is genuine and effective, while Thailand courts held the copyright license agreement is not genuine and effective. Both Guangdong High Court (the second instance court) and the Supreme Court (the retrial court) held the view that the two court decisions in Japan and Thailand failed to go through the legal procedure to acknowledge and accept its legal binding effect according to the Chinese Civil Procedural Law. According to the law, application for acknowledging and accepting the legal and binding effect of a final decision rendered by a foreign court shall go to the competent Intermediate Court in China, instead of the High Court or the Supreme Court directly, due to the jurisdiction issue. Thus, the acknowledgment of legal and binding effect has gone beyond of the jurisdiction of Guangdong High Court and the Supreme Court. Accordingly, those two court decisions in Japan and Thailand do not have legal effect in China and do not have binding effect on Chinese courts. Instead, Guangdong High Court and the Supreme Court recognized that the copyright license agreement at dispute has legal effect based on other aspects of facts ascertained.19

This case ranked as one of China Courts 2013 Top 10 IP Cases. According to this specific case, a final court decision is not necessarily sufficient to prove the copyright ownership. The final decisions regarding the copyright ownership rendered by foreign courts shall go through the necessary legal procedure of acknowledging and accepting its legal and binding effect before the competent Chinese Intermediate Court prescribed by Chinese laws.

(2) Wei Long in Chinese and Wei Long (stylized)

In the above "Wei Long in Chinese and Wei Long (stylized)" case, evidence submitted by the cancellation petitioner HUANG Jin Zhong to the TRAB included the copyright registration certificate issued by the Chinese Copyright Office, photocopies of documentary materials archived at Health Bureau of Cangnan County, and the civil judgment of Chaozhou City Intermediate Court of Guangdong Province. The TRAB held as follows: The facts ascertained by effective court judgments shall be directly affirmed, in the absence of evidence to the contrary which is sufficient to reverse the facts. In accordance with the facts ascertained by the effective civil judgment of Chaozhou City Intermediate Court, HUANG Jin Zhong enjoyed the copyright on the "WEI LONG in Chinese and Wei Long (stylized)" design, and the date acquiring the copyright is March 11, 2002, which is earlier than the application date (December 29, 2003) of the disputed trademark as well as the creation date (November 18, 2003) claimed by Ping Ping Food LLC for its own work. Therefore, HUANG Jin Zhong enjoyed the prior copyright on the work of "WEI LONG in Chinese and Wei Long (stylized)."

However, Beijing First Intermediate Court held as follows: The fact that HUANG Jin Zhong enjoyed the copyright on the "WEI LONG in Chinese and Wei Long (stylized)" sign was affirmed by the civil judgment of Chaozhou City Intermediate Court, on the basis that HUANG Wen Jian, the defendant thereof, had no objection against the authenticity of all the evidence, including the photocopies of documentary materials archived at Health Bureau of Cangnan County submitted by HUANG Jin Zhong. Thus, the affirmation shall be specific only to that civil case. That affirmed fact directly affects the substantial right of Ping Ping Food LLC as Ping Ping Food LLC is an interested party of said affirmed fact. In the circumstance that Ping Ping Food LLC does not accept the authenticity of the evidence based on which the fact was affirmed, and that there is no sufficient proof to prove said evidence is authentic and effective, the affirmed fact does not necessarily have legal binding effect on Ping Ping Food LLC.

One of the key issues in the above case is that the copyright claimant failed to present the original copy of the key evidence, namely, documentary materials archived at Health Bureau of Cangnan County. And the claimant failed to submit any other evidence. Another important factor in this case is that both Beijing First Intermediate Court and Beijing High Court held the view that the "WEI LONG in Chinese and Wei Long (stylized)" sign is not copyrighted work. In fact, unlike Beijing First Intermediate Court, Beijing High Court did not comment on the ownership issue or evidence issue at all. Instead, Beijing High Court merely focused on the analysis that the "WEI LONG in Chinese and Wei Long (stylized)" sign is not copyrighted work, and thus sustained the judgment of Beijing First Intermediate Court based on that ground.

6. Comprehensive evidence with completed chain: best case scenario with strongest credibility

In order to better prove the copyright ownership, combination of the evidence may be the best case scenario, which including the following: evidence concerning the design process of the work, effective judgment confirming the copyright ownership, entrustment agreement regarding the creation of the work, assignment agreement regarding the assignment of the work, copyright registration certificate, prior trademark registration certificate, and any other evidence which can prove the copyright ownership. In the first three cases below, the following combination of evidence is deemed as sufficient to prove the copyright ownership: trademark registration certificate earlier than the application date of the trademark at dispute, combined together with the copyright registration certificate or assignment agreement later than the application date thereof. In the fourth case below, Beijing High Court presumed that the claimant is the copyright owner, based on the following combination of evidence: trademark registration certificate earlier than the application date of the trademark at dispute, combined together with the article of incorporation stipulating the intellectual property ownership including trademark and copyright.

(1) SANYO and N Design

In the above "SANYO and N Design" case, Beijing First Intermediate Court recognized the opponent Sanyo Electronic Co. Ltd. owns the prior copyright, based on the following grounds and facts: First, Sanyo Electronic Co. Ltd. submitted the entrustment agreement regarding the creation of the work of "SANYO and N Design" during the opposition proceeding. Second, Sanyo Electronic Co. Ltd. supplemented the copyright registration certificate, which is issued in 2006 by the Chinese Copyright Office, during the first instance proceeding, and the TRAB has no doubt on the credibility of such evidence. Third, the copyrighted work is the design contained in the trademark registration (Registration No. 1012496) in Japan owned by Sanyo Electronic Co. Ltd., and both the application date (December 26, 1995) and registration date (May 21, 1997) of such prior trademark registration in Japan are earlier than the application date (May 30, 1997) of the opposed trademark.

(2) B Design

In the above "B Design" case, the TRAB, Beijing First Intermediate Court and Beijing High Court all held as follows: Although the copyright registration certificate and the copyright assignment agreement are formed later than the date when Bridgestone Corporation filed the cancellation against the disputed trademark, said copyright registration certificate and the copyright assignment agreement indicate that PAOS Corporation completed the creation of the "B Design" on August 2, 1983, and assigned the copyright thereof to Bridgestone Corporation. In addition, Bridgestone Corporation filed the trademark application of the "B Design" in 1983. This fact indicates that Bridgestone Corporation owns the rights and interests on the "B Design" prior to the application date of the disputed trademark, which also verifies the fact proved by a series of evidence such as the copyright registration certificate. Therefore, the trademark registration certificate, copyright registration certificate and copyright assignment agreement have formed a complete chain of evidence, which may prove that Bridgestone Corporation owns the prior copyright of the "B Design."

(3) KP and Mimi Design

In Knit Planner Co., Ltd. vs. SONG Yi vs. the TRAB case regarding the "KP and Mimi Design," both Beijing First Intermediate Court and Beijing High Court reversed the TRAB decision, and the courts held as follows: Knit Planner Co., Ltd. has submitted the copyright registration certificate filed in Japan on January 1, 2010, to prove that the work entitled "mimi" was first published on August 1, 2000, and the author is indicated as "Knit Planner Co., Ltd." In addition, the trademark registration certificate for the "KP KIDS' STUFF BY KNIT PLANNER and Design" (Registration No. 4629708) in Japan may further prove that the design contained in such trademark registration has been formed as of at least April 12, 2002 (application date of the above trademark registration in Japan). Therefore, in the absence of any evidence to the contrary, the evidence submitted by Knit Planner Co., Ltd. has formed a complete chain of evidence, which may establish that Knit Planner Co., Ltd. owns the copyright on the work entitled "mimi" indicated in the copyright registration certificate.20

(4) CHICAGO BULLS and Bulls Design (color designed)

In NBA Properties, Inc. vs. CHEN Yu Can vs. the TRAB case regarding the "CHICAGO BULLS and Bulls Design (color designed)," both the TRAB and Beijing First Intermediate Court held that the trademark registration certificate alone is insufficient to prove copyright ownership. However, Beijing High Court made further presumption regarding the copyright ownership based on other evidence such as articles of incorporation. Specifically, Beijing High Court held as follows: It is generally known that Chicago Bulls is one club of NBA. The article of incorporation of provided by NBA Properties, Inc. to the TRAB serves as preliminary evidence proving its rights on service design, trademark, trade name, copyright of its club members. Moreover, the cited trademark is identical to the prior copyrighted work of "Bulls Design"; and the application date of the cited trademark is earlier than that of the opposed trademark, which may prove the creation date of work of "Bulls Design" is earlier than the application date of the opposed trademark. The above evidence may preliminarily prove that NBA Properties, Inc. is the owner of the copyrighted work. In the absence of evidence to the contrary, this court presume that NBA Properties, Inc. is the owner of the copyrighted work of the "Bulls Design."21

Ⅴ. Third issue: Similarity between the copyrighted work and the trademark at dispute

Below are three cases where the trademark at dispute is deemed as substantially similar to the copyrighted work.

(1) ICBC Design

In the above "ICBC Design" case, the TRAB, Beijing First Intermediate Court and Beijing High Court all held as follows: The opposed trademark is an imitation of the copyrighted work, as the opposed trademark may be deemed as 90 degree rotation clockwise of the copyrighted work. Thus, the trademark at dispute is deemed as substantially similar to the copyrighted work. The Supreme Court as the retrial court affirmed the decisions of Beijing First Intermediate Court and Beijing High Court.22

(2) CHICAGO BULLS and Bulls Design (color designed)

In the above "CHICAGO BULLS and Bulls Design (color designed)" case, Beijing High Court held as follows: Although the opposed trademark contains the word "Hua Xin in Chinese", the design part occupies the relatively large portion, and such design is extremely similar to the copyrighted work owned by the opponent NBA Properties, Inc. in terms of mode of composition, technique of expression, and overall effect, and has constituted substantially similar.

(3) KP and Mimi Design

In the above "KP and Mimi Design", both Beijing First Intermediate Court and Beijing High Court held that the disputed trademark constituted substantially similar to the copyrighted work.

Ⅵ. Forth issue: Evidence proving the applicant/registrant of the trademark at dispute has the possibility of having access to the copyrighted work

Usually, in order to prove the applicant/registrant of the trademark at dispute has the possibility of having access to the copyrighted work, the following aspects may be argued and evidence may be presented.

(1) Originality of the work. The copyright owner may argue the copyrighted work is of strong originality. In the absence of reasonable explanations and/or evidence to the contrary to be presented by the adversary, the courts will usually accept the arguments of the copyright owner.

(2) Long term use and/fame of the work. The actual use of the copyrighted work and the trademark contains such copyrighted work may be used to establish that the applicant/registrant of the trademark at dispute should have access to such copyrighted work. For example, in the above "ICBC Design" case, both the TRAB and the court held as follows: As of the creation and use of such copyrighted work in 1989, such design has been used and promoted by China ICBC Co., Ltd. for a long time, thus, Tianjin Yi Hong Science and Technology Services Co., Ltd. should have known and approached the design.

(3) Business relationship. The evidence proving that the applicant/registrant of the trademark at dispute has business relationship such as contract relationship, employment relationship and shareholder relationship may be used to establish that the applicant/registrant of the trademark at dispute should have access to such copyrighted work.

In addition, the issue regarding evidence proving the applicant/registrant of the trademark at dispute has the possibility of having access to the copyrighted work may be related to the protection scope of the copyrighted work, when such protection expanded to different Classes.

. Suggestion

In order to better claim the prior copyright, at least the following evidence collection and evidence preservation are recommended:

(1) Preserve the materials generated during the creation of the work such as manuscripts showing the author and the date;

(2) Register the copyrighted work with relevant copyright authorities and obtain a copyright registration certificate shortly after the creation of the work;

(3) File the trademark application for registration if the copyrighted work meets the requirements of trademark registration as well;

(4) Well design and preserve the entrustment agreement, assignment agreement, and employment agreement regarding service invention or work for hire, which shall expressly stipulate the copyright ownership;

(5) While using the work, especially for the first publication, mark the copyright symbol © and make the copyright statement correctly by indicating the author and date on the publications such as magazines, newspapers, and other media;

(6) Preserve the evidence regarding the publicity material, advertisements, and use;

(7) Collect evidence proving use of the trademark and the copyrighted work, and trademark registration certificates;

(8) Obtain and provide the evidence like witness, affidavit, declaration from the relevant entities to support and strength the credibility of other evidence;

(9) Collect favorable effective judgments confirming the ownership on the prior copyright around the world and/or by other Chinese authorities; and

(10) Meet the requirements on the form and credibility of the evidence required by the Chinese laws and practice, such as the original copy, notarized and legalized copy, and English translation, and go through appropriate procedure to ensure the effective judgments rendered by foreign courts to be legally accepted by Chinese courts.

Footnotes

1 http://tech.sina.com.cn/it/2014-08-05/14449536442.shtml

2 the Supreme People's Court Administrative Order (2012) Zhi Xing Zi No. 60

3 Beijing First Intermediate Court Administrative Judgment (2010) Yi Zhong Zhi Xing Chu Zi No. 3223, Beijing High Court Administrative Judgment (2012) Gao Xing Zhong Zi No. 595

4 Beijing First Intermediate Court Administrative Judgment (2007) Yi Zhong Zhi Xing Chu Zi No. 1115

5 Beijing First Intermediate Court Administrative Judgment (2012) Yi Zhong Zhi Xing Chu Zi No. 1286, Beijing High Court Administrative Judgment (2012) Gao Xing Zhong Zi No. 1782

6 Beijing First Intermediate Court Administrative Judgment (2010) Yi Zhong Zhi Xing Chu Zi No. 2632, Beijing High Court Administrative Judgment (2012) Gao Xing Zhong Zi No. 1652

7 Beijing First Intermediate Court Administrative Judgment (2006) Yi Zhong Xing Chu Zi No. 465, Beijing High Court Administrative Judgment (2006) Gao Xing Zhong Zi No. 383

8 Beijing First Intermediate Court Administrative Judgment (2006) Yi Zhong Zhi Xing Chu Zi No. 735, Beijing High Court Administrative Judgment (2007) Gao Xing Zhong Zi No. 179

9 Beijing First Intermediate Court Administrative Judgment (2010) Yi Zhong Zhi Xing Chu Zi No. 2493, Beijing High Court Administrative Judgment (2012) Gao Xing Zhong Zi No. 1048

10 Beijing First Intermediate Court Administrative Judgment (2012) Yi Zhong Zhi Xing Chu Zi No. 165

11 Beijing First Intermediate Court Administrative Judgment (2010) Yi Zhong Zhi Xing Chu Zi No. 2773, Beijing High Court Administrative Judgment (2011) Gao Xing Zhong Zi No. 436

12 Beijing First Intermediate Court Administrative Judgment (2010) Yi Zhong Zhi Xing Chu Zi No. 3026, Beijing High Court Administrative Judgment (2011) Gao Xing Zhong Zi No. 664

13 Beijing First Intermediate Court Administrative Judgment (2012) Yi Zhong Xing Chu Zi No. 2386, Beijing High Court Administrative Judgment (2013) Gao Xing Zhong Zi No. 546

14 Beijing High Court Administrative Judgment (2005) Gao Xing Zhong Zi No. 111

15 Beijing First Intermediate Court Administrative Judgment (2009) Yi Zhong Xing Chu Zi No. 1461, Beijing High Court Administrative Judgment (2009) Gao Xing Zhong Zi No. 1350

16 Beijing First Intermediate Court Administrative Judgment (2009) Yi Zhong Zhi Xing Chu Zi No.1800, Beijing High Court Administrative Judgment (2010) Gao Xing Zhong Zi No. 872

17 Beijing First Intermediate Court Administrative Judgment (2012) Yi Zhong Xing Chu Zi No. 2462, Beijing High Court Administrative Judgment (2013) Gao Xing Zhong Zi No. 93

18 Beijing First Intermediate Court Administrative Judgment (2010) Yi Zhong Xing Chu Zi No. 843, Beijing High Court Administrative Judgment (2011) Gao Xing Zhong Zi No. 1136

19 Guangdong High Court Civil Judgment (2010) Yue Gao Fa Min San Zhong Zi No. 63, the Supreme Court Civil Order (2011) Min Shen Zi No. 259

20 Beijing First Intermediate Court Administrative Judgment (2010) Yi Zhong Zhi Xing Chu Zi No. 3488, Beijing High Court Administrative Judgment (2011) Gao Xing Zhong Zi No. 857

21 Beijing First Intermediate Court Administrative Judgment (2011) Yi Zhong Xing Chu Zi No. 2431, Beijing High Court Administrative Judgment (2013) Gao Xing Zhong Zi No. 962

22 Beijing First Intermediate Court Administrative Judgment (2011) Yi Zhong Xing Chu Zi No. 2533, Beijing High Court Administrative Judgment (2012) Gao Xing Zhong Zi No. 219, the Supreme People's Court Administrative Order (2012) Zhi Xing Zi No. 60

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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