外国投资者并购境内企业规定ppt课件

1、Recent evolutions on IPR in ChinaShi Jiayou(Associate Professor in Renmin University of China,PhD of Paris I and of Renmin University)China Symposium, Singapore, Jan. 30 2021Chinese courts handle 52,437 IPR cases during five years Chinese courts at all levels heard 54,321 and concluded 52,437 cases

2、of civil lawsuits concerning IPR at first instance from 2002 to 2006.ContIn line with the principles of comprehensive IPR infringement compensation, courts at all levels have been gradually increasing the amount of compensation.Foreign-related casesDuring the years from 2002 to 2006, Chinas courts h

3、ave settled 931 foreign-related IPR cases, with an average annual increase of 48.29%. ContContProvisions for Foreign Investors to Merge and Acquire Domestic Enterprises (M&A Rules) 8 August, 2006 promulgated by six ministriesThe new M&A Rules, which takes effect on September 8, 2006, replace the old

4、 M&A rules in China that were promulgated in 12, 2003 (Interim Provisions for Foreign Investors to Merge and Acquire Domestic Enterprises) Article 12 (IP)Where a foreign investor intends to obtain the actual controlling power of a domestic enterprise it plans to take over, and if any important indus

5、try is concerned, or if it has an impact on or may have an impact on the national economic security, or it will lead to the transfer of the actual controlling power of a domestic enterprise which holds well-known trademark or a historic Chinese brand name, the parties concerned shall file an applica

6、tion with the Ministry of Commerce . If the parties concerned fail to do so, while its takeover has had or may have a serious impact on the national economic security, the Ministry of Commerce may, jointly with the relevant departments, demand the parties concerned to terminate the transaction or tr

7、ansfer the relevant equities / assets or take other effective measures to eliminate the takeovers impact on the national economic security. QuestionsImportant Industry: sensitive industry?(List? Or catalogue of industries)National economic security: appreciationMOFCOM / Local government: power of la

8、st sayWell-known trademark : more than 800 (2006)A historic Chinese brand name(中华老字号企业): more than 2,000: procedure of qualification?Trademark Law (revised in 2001)Article 14 Account shall be taken of the following factors in establishment of a well-known trademark:(l) reputation of the mark to the

9、relevant public; (2) time for continuous use of the mark; (3) consecutive time, extent and geographical area of advertisement of the mark;(4) records of protection of the mark as a well-known mark;(5) any other factors relevant to the reputation of the mark. Judicial interpretationsSince 2001, the S

10、upreme Court has reviewed and amended 18 judicial interpretations, which involve patents, trademarks, copyrights, new plant varieties, integrated circuit design, technical contracts, unfair competition, computer network domain names, intellectual property crime, pre-trial provisional measures, IPR p

11、roperty preservation measures, case jurisdiction and trial division. Interpretation on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition (2007)The interpretation on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involvin

12、g Unfair Competition has been promulgated by the Supreme Peoples Court on January 12, 2007 and come into force as of February 1, 2007. “well-known commoditiesCommodities shall not be affirmed as “well-known, provided that they are only famous outside the territory but not within the territory of Chi

13、na. enterprise name or personal nameThe name of enterprise or personal name which shall be protected according to law has been extended to the business name of an enterprise or the pen name or stage name of any natural person.Trade secretsInterpretation provides that the name list of customers among

14、 trade secrets shall generally refer to the name, address, contact information, trading habits, trading intent, and trading contents of customers that consist of the specific client information different from relevant public information.Trade Secret Unavailability to the Public -Commercial Value and

15、 Practical Applicability -Confidentiality Measures Reverse engineeringIn accordance with Interpretation, it is legitimate for managers to obtain business secrets by way of reverse engineering. Nevertheless, it stresses that reverse engineering will not be a good defense for a trade secret infringeme

16、nt claim where the trade secret has been obtained in an irregular way before.Civil liabilities Remedies for Infringement of Trade Secret The remedies for infringement of trade secret under the Interpretation include injunctive relief and damages. Injunctive Relief Damages (i) lost profits incurred b

17、y the trade secret owner due to such infringement; or (ii) unjust benefit obtained by the defendant during such infringement; or (iii) reasonable royalty where neither lost profits nor unjust benefit or some combination of the two remedies are applicable; or (iv) commercial value of such trade secre

18、t where the trade secret has been known to the public due to such infringement.JurisdictionAccording to the Interpretation, in general the intermediate courts have jurisdiction over any unfair competition claims.Labor Contract Law of 2007This law contains provisions to regulate both employers and em

19、ployees on trade secrets and intellectual property confidentiality related issues. Labor Contract LawArticle 23 Employers and employees may include terms in their labor contract relating to the confidentiality of business secrets and intellectual property. In labor contracts which contain confidenti

20、ality obligations, employer and employee may agree on the competition restriction. After cancellation or termination of the labor contract and during the period of restricted competition, compensation shall be paid on a monthly basis. Employees who breach the clauses restricting competition shall pa

21、y liquidated damages to the employer in accordance with the agreement thereof. ContArticle 24 Personnel subject to restrictions in competition shall be limited to senior management, senior technicians and other individuals with obligations of confidentiality. The scope, area and term of the restrict

22、ion shall be agreed upon between the employer and the employee and shall not be in violation of laws, rules and regulations. The term, in which the employees who are subject to restrictions on competition in working for a competing business which produces the same products or services, or starts a b

23、usiness for the same products or services, shall not exceed two years. ContArticle 90 If a worker terminates his employment contract in violation of this law or breaches obligations of confidentiality or restrictions on competition stipulated in his/her employment contract, and if such violation or

24、breach causes losses to his employer, he will be held liable for damages. CHINT v. Schneider (2007)The judgment of the Chinese IP infringement case in the first instance with highest damage claim was rendered in Wenzhou, Zhejiang province on September, 29 2007. Schneider Electric S.A, the world leader in the lower voltage electric products business, was ordered by Wenzhou Intermediate Peoples Court to cease patent infringement and pay 3. 33 billion RMB as damages to a Chinese private-owned enterprise CHINT Group .ContSch