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New Logo of the World Intellectual Property Organization (WIPO)

New Logo of the World Intellectual Property Organization (WIPO) has got a new logo. ¡°This forms the cornerstone of a new visual identity for our organization, in line with the new dierections we are taking to keep with the rapid evolution of intellectual property in the 21st century,¡± said Francis Gurry, Director General of WIPO.

http://blawg.lehmanlaw.com/english/uploadfiles/new%20logo_20505.jpg

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China Law 0 Comment April 28, 2010, 4:27 pm

"INTELLECTUAL PROPERTY PROTECTION BY CHINESE COURTS IN 2009"

On April 21, 2010, China's Supreme People¡¯s Court issued a white paper, in both English and Chinese, entitled, "Intellectual Property Protection by Chinese Courts in 2009." It is made up of four sections in addition to the preface and the conclusion:

I. Fair and Efficient Adjudication of Intellectual Property Cases According to Law has Made the Judicial System a Leading Force in Intellectual Property Protection

II. Judicial Protection for Intellectual Property has Served the Needs of Socioeconomic Development and has Observed and Delivered the National Intellectual Property Strategy

III. Enhanced Judicial Supervision and Guidance has Created Greater Consistency in Adjudication Practices and Decision-Making

IV. Capacity Building for Intellectual Property Judges has Improved Judicial Competence and Quality

¡°This paper provides a general outline of China¡¯s protection of intellectual property for the past 30 years,¡± Edward E. Lehman, Managing Director of Lehman, Lee & Xu. ¡°By reading this paper, you will have a better idea of what China¡¯s courts have done in the past and where they are heading for in the near future in the protection and enforcement of intellectual property in China.¡±

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China Law 0 Comment April 28, 2010, 4:07 pm

SHANGHAI EXIT-ENTRY ADMINISTRATION BUREAU ON VISA AND RESIDENCE PERMITS FOR THE 2010 WORLD EXPO

Shanghai, China - April 26, 2010 - The Shanghai 2010 World Expo is expected to draw 70 million visitors to Shanghai, creating concerns about entry and exit access for foreign investors and visitors to China. AmCham Shanghai will hold a Chinese government briefing on exit-entry visa resolutions on Thursday, May 6 at the Grand Hyatt Hotel. Mr. Cai Baodi of Shanghai¡¯s Exit-Entry Administration Bureau (Shanghai Municipal Public Security Bureau) will be invited to share up-to-date policies and procedures for visa service and residence permit applications. Mr. Cai will also share and answer questions on how the Exit-Entry Administration Bureau will implement its management plans for the 2010 World Expo.

¡°We have an active visa practice in China and have successfully assisted our clients on visa issues for over ten years,¡± said Edward E. Lehman, Managing Director of Lehman, Lee & Xu. ¡°As lawyers for the Expo and member of AmCham Shanghai, we will be able to help our clients as well as members of AmCham Shanghai with their visa issues.¡± added Mr. Lehman.

For more information about Lehman, Lee & Xu, as well as a full listing of the firm, please visit the firm's website at www.lehmanlaw.com or feel free to e-mail the Shanghai office at mail@lehmanlaw.com. ...

China Culture 0 Comment April 27, 2010, 8:45 am

Cooling Off Rule - Protection of Consumer Rights

We have often received inquiries, big or small, concerning various legal issues in China and our lawyers are always ready to provide prompt solutions. Following is one as to whether there is a cooling off rule in China relating to the protection of consumer rights.

Q: I'm a German business student, studying at the University of Mannheim, Germany. Right now I'm writing on my Bachelor's Thesis which deals with commercial returns in different countries. I'm trying to find out if there's a cooling off rule in China. There's one in the European Union, as well as in the USA, permitting the buyer to get out of a contract entered on a door-to-door sale or on the Internet. Maybe you could help me. I found your homepage by looking for the laws on Consumer Protection Rights. Thank you a lot in advance.

A: On the national level, China does not have such a cooling off rule as that of the European Union and the USA. According to China's Consumer Rights Protection law and Product Quality Law, consumers have the right for repair, replacement and return only for commodities with quality problems or for commodities inconsistent with the descriptions when the commodities were sold. Commodities may be returned without reason only if prescribed by the agreements between the sellers and the consumers.

However, one local law entitled Regulations of Shanghai on the Protection of Consumer Rights permits the buyer to return commodities without giving any reason within 7 days if they were done by door-to-door sale. The Regulations also provides that the buyer also has the right to return the commodities within 7 days bought on the Internet if the qualities or functions of the commodities are found to be different from what they were stated to be.
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China Law 0 Comment April 23, 2010, 11:57 am

CHINA¡¯S NEW RULES FOR FOREIGN INVESTMENT

BEIJING, China -- April 15, 2010 -- The State Council of China released concerning new rules on overseas investment last Tuesday. According to the ¡°several opinions of the State Council on further utilizing foreign capital¡± (¡°Opinions¡±), business conditions for foreign investment will be further improved and foreign investment utilizing structures will be optimized.

According to the ¡°Opinions¡±, foreign investment in high-tech industries, service sectors, energy-saving and environmental protection are still welcome, but polluting and energy-gorging or projects in industries running at overcapacity are not wanted. Foreign-funded enterprises are also encouraged to increase their investment in China's central and western regions, particularly in environment friendly and labor-intensive companies. ¡°This shows that the structure of foreign investment will be further adjusted,¡± said Edward E. Lehman, Managing Director of Lehman, Lee & Xu.

According to the ¡°Opinions¡±, China will continue to support Chinese A-share listed companies in further introducing strategic investors from home and abroad, and standardize foreign companies' investment in domestic securities and corporate merger and acquisition moves. A national security examination mechanism will be built as soon as possible for foreign-funded companies' merger and acquisition operation, and qualified foreign-funded companies are allowed to go public, issue corporate bonds or medium-term bills in China. ¡°Foreign-funded enterprises will have more opportunities and enjoy the same treatment as their Chinese counterparts¡±, commented John Lee, Senior Lawyer of Lehman, Lee & Xu.

¡°In addition, importing items for scientific and technological development by qualified foreign-funded R&D centers will be exempt from tariffs, importing value added tax and goods and service tax by the end of 2010.¡± said Scott Garner, Director of Lehman, Lee & Xu Shanghai Office. ¡°This is another indication that high-tech foreign enterprises are fully encouraged in China.¡± Mr. Garner commented.
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China Law 0 Comment April 15, 2010, 10:40 am

H-P¡¯S ACQUISITION OF 3COM APPROVED BY CHINA¡¯S MINISTRY OF COMMERCE

It is reported that 3Com Corp. and Hewlett-Packard Co. has received approval from China¡¯s Ministry of Commerce for H-P¡¯s acquisition of Marlboro-based 3Com.

H-P, based in Palo Alto, Calif., agreed in November to pay $3 billion for computer networking and switching-gear maker 3Com Corp., with an aim to expand its product portfolio, increase sales in the fast-growing Chinese market and better compete with Cisco Systems. The approval under China¡¯s anti-monopoly law is the last of the required regulatory approvals.

¡°Although both H-P and 3Com are companies listed in the U.S., a large part of 3Com¡¯s business is in China. That is why approval under China¡¯s anti-monopoly law for the acquisition is required,¡± said Edward E. Lehman, Managing Director of Lehman, Lee & Xu.

Lehman, Lee & Xu is one of the biggest Chinese law firms, with a strong team involved largely in the anti-monopoly practice area. For more information about Lehman, Lee & Xu, please visit the firm's website at www.lehmanlaw.com or feel free to e-mail the Beijing office at mail@lehmanlaw.com
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China Law 0 Comment April 8, 2010, 5:49 pm

HONG KONG GROUNDS OF REFUSAL

Recently, the Hong Kong Intellectual Property Department issued an amendment to its Work Manual Chapter on relative grounds for refusal. It clarifies that under Section 12(4), if an application is identical or similar to an earlier trade mark, it will not be registered if the earlier trade mark is a well-known trade mark.

It also clarifies that the ground under Section 12(6) that an application is refused on the ground under Section 12(4) only if the objection is raised in opposition proceedings and does not arise at the examination stage. ...

China Law 0 Comment April 8, 2010, 4:28 pm

TRADE MARK REGISTRATION FOR ¡°NAKED¡±

The Hong Kong Court of Appeal made a decision against the Court of First Instance and in favour of the Registrar of Trade Marks concerning the registration of ¡°NAKED¡± for condoms on December 15, 2009.

Earlier in 2009, the Hong Kong High Court of First Instance overruled the decision of the Registrar of Trade Marks in refusing registration of ¡°NAKED¡± for condoms. The Registrar of Trade Marks had based its refusal on the reason that they conveyed an immediate message that they gave users ¡°naked feeling or sensation¡± and this was contrary to Section 11(1)(c) as designating a characteristic of the goods. The Registrar of Trade Marks further decided that ¡°naked¡± described only a characteristic of condoms and failed to perform the essential function of a trade mark in guaranteeing the identity of the origin as required pursuant to Section 11(1)(b) of the Trade Marks Ordinance.

The Judge of First Instance overruled the decision of the Registrar of Trade Marks on the basis that the word ¡°Naked¡± did not directly describe a characteristic of condoms and therefore did not contravene s.11(1)(d) of the Trade Marks Ordinance on the basis of the following reasoning :-

1. ¡°NAKED¡± plainly means ¡°being without covering¡±. A condom is undoubtedly a form of covering;

2. any description which sets out to describe the form of covering represented by a condom as an absence of covering encapsulated in the use of the term ¡°NAKED¡± neatly and precisely creates a paradox by which there is no discernible link between the ¡°nakedness¡± and the characteristics of a condom; and

3. any perception of condom characteristics supposedly designated by the word ¡°NAKED¡± could only be arbitrary or subjective in the variable minds of different persons. Accordingly, there was no real commonality of linkage between ¡°NAKED¡± and the characteristics of a condom.

Eventually the Registrar of Trade Marks appealed to the Court of Appeal which held that :

(i) The Registrar had very particular experience. No court could have or be expected to have such experience and any departure from the exercise of the discretion of the Registrar must be made on the sound basis after full and most careful consideration given to the views and reasons of the Registrar.

(ii) At the hearing, the Registrar¡¯s Hearing Officer correctly exercised her discretion to reject the mark under Section 11(1)(b). The judge had interfered with that discretion but had not adduced any sound basis for his interference.

(iii) As regards Section 11(1)(c), the approach by the Hearing Officer was entirely correct. She had found that the mark ¡°NAKED¡± was simply a sign that consists exclusively of a word which may serve to describe and designate the characteristic of the goods i.e. a type of condom that gives the users naked feeling or sensation. Further, in reaching her decision, the Hearing Officer had given valid reasons for doubting the rigid application of the threefold test in Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Wm Wrigley Jr Co (Doublemint) applied in interpreting Article 7(1)(c) of the Trade Mark Regulation (Council Regulation (EC) 40/94). That provides that a brand name consisting exclusively of signs or indications which may serve in trade to designate characteristics of the product concerned may not be registered as a trade mark. The three fold test is:

1. concerning how a term relates to a product. The more objective the relationship is , the more likely the term may be treated as a designation in trade, so registration could be precluded by art 7(1)(c); On the contrary, the more subjective the relationship is the more likely the term will be registered.
2. concerning how a term is perceived: The more ordinary a term is, the more likely a consumer will aware the designation of a characteristic and more likely the application will be refused.
3. concerning the significance of the characteristic of the product. Where the characteristic designated is essential to the product, or is important in a consumer¡¯s choice, then the application will be refused; where it is arbitrary, the case is weaker.
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China Law 0 Comment April 8, 2010, 4:28 pm

Issues of International Law: Rio Tinto Bribery Case

The Shanghai No. 1 Intermediate People¡¯s Court sentenced four employees of British-Australian mining conglomerate ¡°Rio Tinto¡± to jail on Monday on charges of receiving bribes and stealing commercial secrets. The jail terms, ranging from seven to fourteen years, have been criticized as overly harsh by the Australian Foreign Minister Stephen Smith, although acknowledged respect for Chinese legal and judicial processes. The four employees-one an Australian national and three Chinese nationals- were convicted of receiving over 92 million yuan in bribes. It was the court¡¯s opinion that the defendants obtained confidential information regarding Chinese steel mill processes that would be used as leverage to drive up the price China pays for iron ore imports from Rio Tinto, as well as other international suppliers. The four defendants will pay the price of damaged competitiveness to Chinese steel industry, although many believe this was an opportunity for China to clarify its own notion of commercial secrets. The international business community as a whole looked to China to make clarifications, although that part of the trial was held in closed court. Vague legal boundaries have been sited as one reason why foreign business sentiment seems to be souring against China, especially in lieu of Google¡¯s exit from the mainland.

¡°As China¡¯s influence in the international business world continues to grow, matters of international law will continue to resurface,¡± stated Edward Lehman, senior attorney of Lehman, Lee and Xu. ¡°As one of the largest corporate commercial law firms on the Chinese mainland, Lehman, Lee, and Xu is prepared to meet all the needs of our international business customers. There is hardly an aspect of international law we do not touch upon for both domestic and international companies, and have the capabilities to make clear any questions they may have.¡±

For more information about Lehman, Lee & Xu, as well as a full listing of our services, please visit the firm's website at www.lehmanlaw.com or feel free to e-mail the Beijing office at mail@lehmanlaw.com.


By
Morgan Crank
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China Law 0 Comment April 2, 2010, 9:52 am

Lehman, Lee & Xu nominated ¡°Rising Star¡± at the International Legal Awards 2010

Lehman, Lee & Xu is pleased to announce that it has been distinguished in the category ¡°Rising Star¡± at the International Legal Awards 2010. ¡°Rising Star¡± award is aimed at recognizing firms of high potential. It recognizes remarkable evolution and rapid market gain to catch up with current leaders.

The jury included General Counsels and distinguished Lehman, Lee & Xu as a very dynamic firm, able to provide clients with innovative and efficient solutions.

Key figures of the International Legal Alliance Summit & Awards:
- Over 200 nominated law firms in 20 countries
- More than 100 General Counsels of Fortune 500 companies
- 10 Jury panels representing North America, Western Europe. Eastern Europe, Asia and South Pacific, Middle East and South Africa, South America
- 600 delegates (senior representatives of law firms and general counsels) from 40 countries...

China Culture 0 Comment April 2, 2010, 9:39 am

China¡¯s Impending Urban Out- Migration

Alexander Pan,
Beijing, China

While the flood of migrant laborers into first tier urban centers such as Beijing, shanghai, and Guangzhou, shows no sign of slowing; a new study reveals what may be a new type of out migration of upper middle class white collar workers from first tier cities, to second and third tier cities.
According to a survey conducted by Digitimes, the rapidly increasing price of housing and living, as well as the everyday stresses associated with living in first tier urban centers is causing many young white collar workers to look elsewhere for employment. They hope to find equal economic opportunities and a ¡°more comfortable¡± life with ¡°less stress.¡±
Among the survey participants who had lived in a first tier city for over three years, 55% of them responded that they would like to move out of the city within the next few years. Many of these respondents cited increasing housing prices and high levels of stress as the major reasons for their desire to leave.
Many of these respondents stated that that would look to move to second and third tier cities such as Hangzhou, Qingdao, and Xiamen. They believe that these cities have huge development potential in the upcoming years, and will afford them a much less stressful life as well as a significantly reduced cost of living.
"Yes, I'm ready to leave any time to a city where I don't need to worry about housing prices every day," said Sarah Pei, 29, a marketing assistant in Shanghai who earns a monthly salary of about 7,000 yuan ($1,000).
"I get a handsome salary here, but I'm not happy. The city's high housing prices and high cost of living bother me every day. That's why my husband and I aren't thinking about a baby. We don't have enough money to raise a baby," she said.
"I know I will leave here one day. The salaries in my hometown of Taiyuan, in Shanxi province, may be not as high as in Shanghai, but it can cut at least 10 years off the time it would take me to buy an apartment."
The information gathered by this survey is corroborated by another survey conducted by Shanghai-based xinmin.cn, which showed about 76 percent of 428 respondents who are now working in Shanghai intend to leave over the next one to three years.
Edward Lehman managing director of Lehman Lee and Xu, said that ¡° This research shows us two very important things. First, the sky rocketing property prices in China¡¯s urban centers is beginning to price out some of the nations best and brightest young workers. This shows us the importance of controlling these property prices so that these cities may continue to flourish. Secondly, while this may be a bad sign for the so called first tier cities, It is great news for the second and third tier cities and China as a whole. With these bright, and upwardly mobile workers moving into lesser developed cities, we can expect to see rapid booms in their respective economies. We at Lehman Lee and Xu have offices in nearly all of China¡¯s developing cities and look forward to assisting these bright young workers as they prosper and bring prosperity to their new homes.

For more information please visit www.lehmanlaw.com
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China Law 0 Comment April 1, 2010, 11:56 am

Socio-Economic Side Effects of Urbanization

With 46.6% of China¡¯s population now living in urban areas, considerable stress is being put on cities¡¯ social infrastructure. Urbanization has been encouraged by the government since the 1990¡¯s to encourage economic development, but with 662 million people (167 million of whom are migrant workers) living in cities now, it has been forced to rethink its social welfare and healthcare policies. Although many cities have relaxed their policies towards migrant workers to better suit their needs, life insurance and healthcare insurance regulation policies will be enacted later this year. The number of cities in China grew to 655 by 2008, with 122 mega-cities (with a population more than 1 million) and 118 big cities (with a population between 500,000 and 1 million). Apart from social issues urbanization causes, sustainable environmental and waste management are rising issues on the government¡¯s agenda.

¡°Located in many of China¡¯s largest cities, Lehman, Lee, and Xu law firm is up-to-date on the socio-economic changes taking place in the nation,¡± Scott Garner, director of the Shanghai office, stated. ¡°We handle cases regarding everything from labor and employment to government relations, including negotiating and drafting employment contracts, advisement on governmental health and safety requirements and employee benefits, assistance with employment-related dispute settlement, tax liability or disputes with the local Tax Bureau, pension funds, and insolvency.¡±

For more information about Lehman, Lee & Xu, please visit the firm's website at www.lehmanlaw.com or feel free to e-mail the Beijing office at mail@lehmanlaw.com.


By
Morgan Crank
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China Law 0 Comment April 1, 2010, 9:54 am