On Oct. 28, 2014, Mr. Edward Lehman, Managing Partner of Lehman, Lee & Xu joined the CCTV program Dialogue as a guest speaker to discuss recent indications that The Shanghai Free Trade Zone (FTZ) will be a model in the establishment of similar zones throughout China. The Shanghai FTZ was established in 2013 with the goal of making it easier to do business and in particular easing currency exchange restrictions on the RMB. From Oct. 2013 to Sept 2014, the FTZ’s exports reportedly hit 196.5 billion Yuan and imports 551 billion Yuan.
The discussion included analysis and commentary on the current state of the Shanghai FTZ, whether it has been a success, Xi Jinping’s plan to “Plant the Seeds” of the Shanghai FTZ elsewhere within China, and the potential for these reforms to transform the broader Chinese economy.
Published by admin on October 30th, 2014 tagged Uncategorized | Comment now »
Mr. Edward Lehman, Managing Partner of Lehman, Lee & Xu participated on Oct. 24 as the noted guest speaker on the CCTV program Dialogue. The show came shortly after the important Fourth Plenum gathering of the Central Committee of China; a meeting of government and Party officials which sets broad policy outlines and goals for the coming years. The theme of the Forth Plenum was developing “Rule of Law” in China, and comes in the midst’s of a prolonged Anti-Corruption campaign against illegal activity and misbehavior among government officials.
Issues discussed on the Dialogue include China’s efforts to promote judicial independence and separate the courts from the influence of local officials; the importance of the Chinese Constitution and establishing a system of Constitutionalism; the ongoing effects of the continued crackdown on corruption as well as various ways in which increased “rule of law” may promote greater economic activity and growth in China.
Published by admin on October 30th, 2014 tagged Uncategorized | Comment now »
September 24, 2014, Beijing – Mr. Edward Lehman, Managing Partner of Lehman, Lee & Xu has been selected as a world leading Franchise lawyer, by Who’s Who Legal: Franchise 2014. Who’s Who Legal is an independent research organization which identifies leading attorneys in diverse fields around the world.
Research for the selection of winners was conducted independently by direct contact and interviews with leading corporate counsel around the world. Additional research into short listed candidates is conducted to select the best of the best from the most often mentioned attorneys. This honor cannot be bought. Only those nominated and confirmed to be pre-eminent franchise specializes will be selected.
Lehman, Lee & Xu is honored at Mr. Edward Lehman’s section. As a Top 3 Corporate Commercial Law Firm in China, Lehman, Lee & Xu has often assisted international franchising companies in establishing Franchise operations in mainland China. Mr. Edward Lehman has the knowledge and experience in working with the complicated Franchise laws in China, as well as the Chinese legal system as a whole. The firm’s team of Bilingual, English and Chinese speaking lawyers are experts in all areas of Chinese law.
Lehman Lee & Xu’s franchise lawyers provide legal and business advice covering every aspect of franchise law, from advising on a new start up franchise Company to an established company that wants to expand its franchise system. Services provided to developing franchise businesses include guidance on business organizations that will operate effectively in China, developing business plans, drafting franchise agreements, intellectual property protection and sub-franchising agreements.
Mr. Edward Lehman was among the founders of Lehman, Lee & Xu in 1992, and has worked as a lawyer “On the ground” in China for over 27 years. The firm was founded with the goals of developing excellence in the practice of law the founding of modern law practices in China. Lehman, Lee & Xu is recognized in China as a leader in the area of franchise law and was the first firm to translate and review China’s franchise law in 1997. The firm set up and is legal counsel to the China International Franchisor’s Association (CIFA), which provides a forum for foreign franchisors to discuss China legal and business issues.
Published by admin on September 24th, 2014 tagged Uncategorized | 2 Comments »
Infringements of IP rights attract the attention both of the Chinese governmental authorities and Chinese courts. While the governmental authorities are taking more actions to address online infringements of IP rights and more regulatory measures to restrict online trading in health-related items, Chinese courts are issuing progressive decisions to clarify the duty of care trading platforms have in responding to complaints by IP owners.
The following is a quick review of newly issued rules and regulations governing infringements of IP rights and the decisions in some important IP rights infringement cases.
Q: What’s different about the newly revised Trademark Law and The Implementing Rules?
A: According to the newly amended article 56(5) of The Trademark Law, a party which “intentionally …..provides facilitating conditions, thereby assisting another to infringe” will incur secondary liability for trademark infringements. Additionally, according to article 75 of the Implementing Rules, an online commodities trading platform may be subject to secondary liability as a result of these new laws.
The new provisions don’t introduce new obligations for a trade platform, although they clearly help to emphasis the legislature’s concerns over online trademark violations.
Q: What’s this I’ve heard about the China FDA’s newly drafted rules on Online Sales of Health-Related Products?
A: Pursuant to the draft rules, online sales of food, health food, cosmetics and medical equipment are governed by these regulations and the manufacturers and wholesalers of such products must apply for permits from the FDA before they market such products online.. Additionally, manufacturers and wholesalers will be prohibited from selling these products directly to customers.
Q: How will the new SAIC campaign effect online counterfeiting?
A: On June12, 2014 the State Administration for Industry and Commerce issued a notice emphasizing an enforcement campaign targeting online counterfeiting, especially on of electronic goods, children’s goods, auto parts, clothing, cosmetics and agricultural goods. The new regulations should make it easier for brand owners to enforce Intellectual Property, and stop online counterfeiting.
Q: What is the National Leading Group action plan?
A: Several days after the notice of SAIC, the National Leading Group for Fighting Intellectual Property Rights Infringements announced an online anti-counterfeiting action plan. Pursuant to this action plan, from June of this year (2014), agencies are to focus on the following objectives:
(1) Supervising key websites and e-commerce platforms;
(2) Shutting down illegal websites;
(3) Warning and educating business operators and consumers; and
(4) Encouraging information sharing and cooperation between sectors, regions and law enforcement agencies.
The action plan pays special attention to the following:
(1) Enhanced focus on cross-border enforcement initiatives to halt online infringements, with Customs, China Post and the Ministry of Public Security meant to work with each other and corresponding agencies outside China;
(2) Development of advanced technology to improve authorities’ enforcement capabilities and to create an effective e-commerce supervision network, tracking and tracing technologies, etc; and
(3) Improving internet governance, regulations and standards, including through the development of judicial interpretations on issues unique to online enforcement, such as evidence collection processes, and fixing gaps in relevant laws and regulations.
Q: What actions are being taken by the SIPO?
A: As of May, 2014 the State Intellectual Property Office commenced a five-month campaign to support complaints by patent owners in their efforts to have advertisements for infringing goods taken down by Chinese trade platforms. And the campaign is aimed at encouraging local intellectual property offices to assist by providing advice and instructions to trade platforms to take down offending ads where infringements are deemed clear, and also to mediate disputes where the existence of an infringement is less clear.
Q: Have recent court decisions effected how counterfeiting is handled on online trade platforms?
(1) E-Land (Shanghai) Clothing Trade LLC VS. Zhejiang Taobao Internet LLC (2013), lowers the evidentiary requirements for IP holders when the circumstances of an online sale make it clear that the goods are infringing an IP right.
(2) The “safe harbor” defense which permits trade platforms to avoid liability if they remove infringing offers may not be applied where the infringers are repeat offenders on that platform. As a result, platforms will need to do more than just delist infringing sales each time they pop up. Stronger actions will need to be taken, and may include termination of the infringer’s account.
(3) Zhejiang Pan-Asia E-commerce LLC VS. Beijing Baidu Internet LLC (2012). The court suggested that internet platforms be more more flexible in their requirements and should help verify information as needed to support take-down requests.
(4) Beijing Sanmianxiang Copyright Agency VS Beijing Qihoo Tech LLC (2014), Beijing Qike Fantasy IT LLC VS. Guangdong Aufei Cartoon Culture Inc (2014), Shanghai Wenqin Recreation LLC VS. Zhejiang Taobao Internet LLC (2012), Shanghai HeWeiTang Medical Devices LLC VS. Zhejiang Taobao Internet LLC (2012), Hangzhou Guxiu Clothing LLC VS. Zhejiang Taobao Internet LLC (2010).
All support the position that the standard to determine whether a trade platform bears “fault” includes not only actual knowledge, but also constructive knowledge.
Finally, the famous Chinese e-commerce platform Alibaba announced that it will be introducing a three-strike rule to strengthen the deterrence against repeat offenders on its Alibaba and Aliexpress platforms. Specifically, the first strike will be a warning letter, and the second will be removal of the listings for seven days, and the third will be closing the account of the infringer.
Published by admin on August 1st, 2014 tagged Uncategorized | 8 Comments »
There is no “Preliminary Hearing” in China criminal procedure. The Initial investigation is carried out by the prosecutor (Called The People’s Procuratorate in China), who will then decide if the case is deserving of criminal charges
After the prosecutor has concluded its investigation of a case, the facts should be clear and the evidence reliable and sufficient. It shall make a written recommendation for prosecution, which shall be transferred, together with the case file and evidence, to the People’s Procuratorate at the same level for examination and decision.
If it is discovered during investigation that a criminal suspect’s criminal responsibility should not have been investigated, the case shall be dismissed; if the criminal suspect is under arrest, he shall be released immediately and issued a release certificate, and the People’s Procuratorate which originally approved the arrest shall be notified.
The Prosecutor shall make a decision within one month on a case that a public security organ has transferred to it with a recommendation to initiate a prosecution; an extension of a half month may be allowed for major or complex cases.
When examining a case, the Prosecutor shall interrogate the criminal suspect and heed the opinions of the victim and of the persons entrusted by the criminal suspect and the victim (legal counsel).
In examining a case that requires additional investigation, the People’s Procuratorate may remand the case to a public security organ for supplementary investigation or conduct the investigation itself.
In cases where supplementary investigation is to be conducted, it shall be completed within one month. Supplementary investigation may be conducted twice at most. When supplementary investigation is completed and the case is transferred to the People’s Procuratorate, the time limit for examination and prosecution shall be recalculated by the People’s Procuratorate.
With respect to a case for which supplementary investigation has been conducted, if the People’s Procuratorate still believes that the evidence is insufficient and the case does not meet the conditions for initiation of a prosecution, the People’s Procuratorate may decide not to initiate a prosecution.
When a People’s Procuratorate considers that the facts of a criminal suspect’s crime have been ascertained, that the evidence is reliable and sufficient and that criminal responsibility should be investigated according to law, it shall make a decision to initiate a prosecution and shall, in accordance with the provisions for trial jurisdiction, initiate a public prosecution in a People’s Court.
A decision not to initiate a prosecution shall be announced publicly, and the decision shall, in written form, be delivered to the person who is not to be prosecuted. If the said person is in custody, he shall be released immediately.
If the People’s Procuratorate decides not to initiate a prosecution with respect to a case that involves a victim, it shall send the decision in writing to the victim.
If the victim refuses to accept the decision, he may, within seven days after receiving the written decision, present a petition to the People’s Procuratorate at the next higher level and request the latter to initiate a public prosecution.
If the People’s Procuratorate upholds the decision not to initiate a prosecution, the victim may bring a lawsuit to a People’s Court. The victim may also bring a lawsuit directly to a People’s Court without presenting a petition first.
Published by admin on July 18th, 2014 tagged Uncategorized | 9 Comments »
United Kingdom – 8 July 2014 – Winners of the prestigious 2014 Acquisition International Magazine Intellectual Property Awards have been announced today.
Voted for by a worldwide network of professionals, advisers, clients, peers and business insiders, the Acquisition International Magazine Intellectual Property Awards celebrate the individuals and firms who are involved in driving the intellectual property field – lawyers, agents, consultants, advisers and service providers – and thus playing a vital role in advancing innovation.
The awards, open to businesses from any sector or region, are given entirely on merit, acknowledging fantastic achievement over the course of the past year. Winners are nominated and voted for by their peers and clients.
Speaking about the awards, awards coordinator, Charlotte Abbott said: “We’re honoured to recognise some of the most committed individuals and firms working in intellectual property today. The winners can be proud of the important work they have been doing over the past year.”
Lehman, Lee & Xu has been awarded “Top Tier IP Law Firm of the Year- China.” We believe this distinction is a reflection of the dedication and knowledge of our Intellectual Property team. Lehman, Lee & Xu serves Trademark and Patent protection and litigation in addition to providing full legal services in mainland China.
Published by admin on July 9th, 2014 tagged Uncategorized | 16 Comments »
After a criminal suspect is interrogated by an investigation organ for the first time or counting from the day on which compulsory [detention] measures are adopted against him, he may appoint a lawyer to provide him with legal advice and to file petitions and complaints on his behalf.
However, it is important to remember there is no Attorney-Client privilege in China. All attorney to client communications may be monitored or subject to discovery in court.
If the criminal suspect is arrested, the appointed lawyer may apply on his behalf for obtaining a guarantor pending trial. If a case involves State secrets, the criminal suspect shall have to obtain the approval of the investigation organ before appointing a lawyer. The appointed lawyer shall have the right to find out from the investigating organ about the crime the defendant is suspected of, and may meet with the criminal suspect in custody to enquire about the case.
When the lawyer meets with the criminal suspect in custody, the investigation organ may, in light of the seriousness of the crime and where it deems it necessary, send its people to be present at the meeting.
If a case involves State secrets, before the lawyer meets with the criminal suspect, he shall have to obtain the approval of the investigation organ.
A criminal suspect in a case of public prosecution shall have the right to entrust persons as defense counsel from the date on which the case is transferred for examination before prosecution.
A People’s Procuratorate (Prosecutor) shall, within three days from the date of receiving the file record of a case transferred for examination before prosecution, inform the criminal suspect that he has the right to entrust persons as his defenders.
A People’s Court shall, within three days from the date of accepting a case of private prosecution, inform the defendant that he has the right to entrust persons as his defenders.
Published by admin on July 8th, 2014 tagged Uncategorized | 11 Comments »
The time limit for holding a criminal suspect in custody during investigation after arrest shall not exceed two months. If the case is complex and cannot be concluded within the time limit, an extension of one month may be allowed with the approval of the People’s Procuratorate at the next higher level.
If due to special reasons, it is not appropriate to hand over a particularly grave and complex case for trial even within a relatively long period of time, the Supreme People’s Procuratorate shall submit a report to the Standing Committee of the National People’s Congress for approval of postponing the hearing of the case.
With respect to the following cases, if investigation cannot be concluded within the time limit specified, an extension of two months may be allowed upon approval or decision by the People’s Procuratorate of a province, autonomous region or municipality directly under the Central Government:
- grave and complex cases in outlying areas where traffic is most inconvenient;
- grave cases that involve criminal gangs;
- grave and complex cases that involve people who commit crimes from one place to another; and
- grave and complex cases that involve various localities and for which it is difficult to obtain evidence.
If in the case of a criminal suspect who may be sentenced to fixed-term imprisonment of at least ten years, investigation of the case can still not be concluded upon expiration of the extended time limit, another extension of two months may be allowed upon approval or decision by the People’s Procuratorate of a province, autonomous region or municipality directly under the Central Government.
Published by admin on July 2nd, 2014 tagged Uncategorized | 11 Comments »
Lehman, Lee & Xu is excited to announce its recognition as a Global 100 firm in the practice of China Advertisement in 2014. Mr. Edward Lehman, managing partner at the firm for over 22 years is proud the firm has been recognized as a true leader in the field. The Award has been determined through a comprehensive nomination and voting process among industry players. Top firms are recognized based on analysis of quality of international and domestic work in the legal practice of advertisement in China. Independent judges base the selection of winners on:
- The strategic nature of work conducted;
- The complexity of work conducted;
- The scale of work conducted;
- Whether the work conducted was done so in a speedy manner, and within budget,
- Ground-breaking or innovative processes,
- A strong focus on the complexity and strategic significance of work conducted.
Lehman, Lee & Xu’s advertising law specialists offer complete legal service to a broad spectrum of advertising clients on a wide diversity of matters. The firm has advised some of the biggest players in the industry in some of the advertising’s most significant and intricate matters. The sizzling pace of changed market conditions, the magnitude of intense competition and a tightly controlled media environment in China have further prioritized advertising lawyers such as Lehman, Lee & Xu with on-the-ground and meticulous local knowledge to offer you cutting-edge and industry-focused legal expertise.
The firm is experienced in providing advice on changes in laws, regulations and policies and on how those changes affect our clients’ interests. Our dedicated advertising team also advises on all types of marketing contracts and content issue and is regularly involved in brand selection, protection and maintenance work. On the contentious side, we bring to bear the tremendous skills of our market-leading dispute resolution practice.
Our attorneys’’ sophisticated understanding of our clients’ marketing priorities and the dimensions of their business needs ensures that we are well placed to provide comprehensive and individually tailored solutions to the standard of professionalism, quality and timeliness essential to support the business and legal complexities encountered on a day to day basis in China.
The firm has been operating in China for the past 22 years and has been managed by American Edward Lehman throughout that time. Mr. Lehman’s extensive experience and our quality team of Chinese and English speaking attorneys, places Lehman, Lee & Xu among the elite firms in China.
Published by admin on June 26th, 2014 tagged Uncategorized | 12 Comments »
New trend on streamline the examination and approval formalities for Foreign Investment projects in China
To carry out the spirit of deepening reform of the administrative examination and approval system, optimizing the management and increasing the efficiency of examination and approval, on May 28th, the Ministry of Commerce issued an Announcement on the Launch of the Advancement in the examination and Approval of Foreign-Invested Projects. By this Announcement, the Ministry of Commerce will launch a pilot work to simplify the formalities of examination and approval for 3 months, which will be end on August 31st.
According to the Announcement, except for the foreign-direct sales projects, all the other examination and approval matters administrated by the commerce ministry, such as establishment foreign invested company, change the investor, the business scope, transfer company share etc. will be covered in this simplifying pilot work. The scope that will be streamlined in this pilot work will include: simplifying the application documents and reducing application formalities.
The aim of this Announcement is to provide convenient to the applicant by cutting down the time consumption for all the applications. By this announcement and the expectation of the result of this pilot work, we may expect that in the future, the examination and approval for foreign invested projects that governed by the Ministry of Commerce will be more and more simple.