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Jul20

What happens when a trademark conflicts with a website in China

Client has asked me to trade mark Brand X for use on a web site. There are no competing marks on the CNPTO but somebody already has a website up called Brand Xing (the same name as my client with an "ing" on the end). As an experienced China intellectual property lawyer, we often face such tough issues that unspecified by law.

They provide exactly the same service.

My client's mark is not in the stream of commerce. The competitor's is in the stream of commerce. In other words, the competitor is already using it.
We haven't used it yet.

If I get our trademark registered, does that mean we can force the competitor to stop using it even though he was using it first?

 
Jul20

It's illegal for a contractor to offer to pay the property owner's insurance deductible as part of the deal in China

It has been suggested to me that it is illegal for a contractor to offer to pay the property owner's insurance deductible as part of the deal. I can think of no reason, legally or economically, that this would be problematic. I suppose there are opportunities for actionable misrepresentations but. . . what say the learned masses? Why would an insurer care who pays it?

Depending on how it is structured, it could be considered criminal fraud or theft by deception. It has been awhile since I actually read a broad form insurance policy, but I think it would violate the terms of the homeowner's policy and invalidate the claim. It is a common practice regardless, but I would never advise a client to participate and would advise them of the potential risks if they do.

 
Jul19

China Commercial Collection Lawyer's Job Has Never Been Easy

My friend came to me and asked: I have been retained to collect a debt owed by one company to another. As a former commercial collection lawyer and current debt defense lawyer, I was wondering if anyone has done any debt collection and can give me some ideas on what efforts they take prior to actually filing a claim.  It doesn't seem as if they will have a real defense because they made some payments initially and then just stopped.

I replied: I'd put together a demand letter that spells out what you are requesting in as much detail as possible, and then provide a drop-dead date for a response. Make sure to close it with "Govern yourself accordingly."

 
Jul18

Choice of Law Problem in China Copyright Sale Contract

Today I am going to talk about a case I discussed with my colleagues in our law firm. I was asked whether I have any thoughts on this?

- A would be seller has an offer to by photographs made by her husband. The pictures were literally taken in another country decades ago.
- The deceased husband was a noted photographer in this other country. He published some of his own works. However, the collection runs in the 100s or 1000s and there may be extra copies of works for hire the deceased photographer kept for himself.
- Seller shouldn't warrant all title, exclusive rights, etc, as she simply doesn't know the status of copyright for each picture.
- Can she simply assign whatever rights she has without guaranteeing anything?

 
Jul17

How To Deal With Clients Who Delay Payment of Attorney Fees

A rookie lawyer asked me a question as below:

How do you deal with potential clients who procrastinate? I've run in to three in a row now with good cases (e.g. wage and labor, immigration, collections, etc) and who I impress with my skill set, reasonable rates, and knowledge base, but then they drag their feet in actually getting their case going.

In the past, I've assumed that these PCs hire another lawyer, settle their dispute, etc, but I run in to these last three PCs all the time and I know they just haven't done anything with their case.

I suppose part of this is human nature -- I see procrastinating clients in estate planning a lot since no one wants to think about death. Part of this is also fear since anything involving lawyers (even if not adversarial) scares some people.

 
Jul16

Find A Professional Lawyer When You Are In Trouble - Even You Are Lawyer Yourself

My fellow lawyer approached me today and shared a story.


Casual acquaintance of mine bought some meat & cooked it.  The next night she and her son were eating the left overs when she bit down a piece of metal in the chicken.  The piece was small - smaller than a fingernail. Her tooth was chipped and she had to make an emergency dental appt. In her naivete, she contacted well known chicken company.  The  "really nice guy" has been very helpful and sweet.  She sent him the piece of metal per his request. She also gave several statements and answered all questions.  He was very nice. He sent her a letter and told her that they ran it through their metal detector and it triggered the alarm.  IE, Ergo, Therefore, it would have triggered the alarm before it left the hen house and ie, ergo, therefore, the metal must have come from her house especially since she was eating leftovers.

 
Jul15

China Self Defense Rules in Criminal Defense Cases

As a criminal defense lawyer, I often provide consultation on China criminal law rules. I received a consultation on a questions about self-defense. Let's say that Person A has a gun and pursues Person B. Person B gets away and Person turns around. Has Person A done enough to break off the pursuit? Person B comes out and beats up Person A. Who is the aggressor now? What I am wondering is at what point does the aggressor become the victim so that self-defense is a valid response?

Below is my answer to above questions.

 
Jul14

Res Judicta and Claim Preclusion Under Chinese Law

I received an inquiry from a fellow litigation lawyer here in Shenzhen. A case arising out of a Guangdong was dismissed in district court for failure to state a claim and the decision was upheld on appeal. I am looking into whether there is any avenue possible to file a complaint in a Guangdong court. Any input or ideas?  There may be claims that weren't included in the original complaint.

In my view, I would ask that was the decision dismissed with or without prejudice?  Usually (and it can vary by local rule) if it does not state WITH prejudice it is assumed without and thus no Res Judicta.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.