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leidelaohu
Wonder Wit
Joined: June 11, 2007
Posts: 3777
Status: Offline
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 Posted:
Sep 05, 2008 - 09:05 PM |
 
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| ckfactor wrote: |
| Can a foreigner take life insurance out on a local. |
That sounds .... interesting  |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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Sep 09, 2008 - 01:01 PM |
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Reverse Passing-off in Trademark Infringement
China’s first case regarding trademark reverse passing-off
A typical trademark infringement shall be the use of a trademark which is the same with or similar to the registered trademark on the same or similar products without permission of the holder of the registered trademark. For example, company A owns a registered trademark M and the designated product for the trademark is drainpipe. It is found company B uses the trademark M on its drainpipe product without permission from company A. Therefore, company B infringes the trademark right of company A.
However, there are other types of infringement.
Case:
On May 1994, a dealer of Singapore Crocodile bought some western-style garment with trademark “Maple Leaf” from Beijing Garment Factory with unit price RMB 230. Then it removed the logo of “Maple Leaf” and replaced it with the trademark “Crocodile” and resold to customers with unit price RMB 560 at Beijing Parkson Shopping Center. This was found by Beijing Garment Factory and a lawsuit was filed. The court finally recognized as unfair competition and the defendant was ordered to stop the infringement and liable to pay compensation.
This is the first case in China about trademark reverse passing-off. However, at that time, since China had not listed reverse passing-off as a kind of trademark infringement in its trademark law, the court rendered the award by recognizing as unfair competition. After that, China revised its trademark law in 2001 and reverse passing-off was officially listed as a type of trademark infringement.
Some features of trademark reverse passing-off
Under Articles 52 of Trademark Law, if a person, without permission of the trademark holder, replaces the trademark with another one and resells the product in the market, his behavior may infringe the trademark right of the holder.
To be simple, trademark reverse passing-off means a person buys another one’s goods, removes the trademark on the goods and replaces it with his trademark. And then he resells the goods to customer.
We can see there are following features for trademark reverse passing-off
a. The trademark infringed shall be a registered trademark. That is, the trademark must be registered in the State Trademark Office;
b. The product is acquired in a legal way. It may be manufactured or sold by the trademark holder;
c. The purpose for reverse passing-off is to make use of the good quality reputation of other person’s product and therefore to make illegal profit by disguising the true source of the product.
How to respond to trademark reverse passing-off
Trademark reverse passing-off is a kind of infringement. There are the following two choices for the trademark holder to take if there is any such infringement:
a. Administrative settlement. The trademark holder can file a complaint to the local administration of industry and commerce. After investigation, if the infringement fact is confirmed, the administration of industry and commerce will order stop of infringement and impose a penalty against the infringer. Furthermore, the trademark holder can apply the administration of industry and commerce for mediation of the amount of compensation. If the mediation fails, the holder can file a lawsuit;
b. Judicial settlement. The trademark holder can also file a lawsuit directly without filing the complaint to the administration of industry and commerce. But before the lawsuit is filed, it is advised the trademark holder shall find a lawyer to collect evidence and make preparation for the lawsuit.
Compensation
Upon request of the trademark holder, the court may decide the amount of compensation against the infringer for trademark reverse passing-off. In accordance with the law, the amount of compensation for infringement will be decided as follows:
a. The amount of compensation can be the profit obtained by the infringer during the period of infringement; or
b. The amount of compensation can be the loss suffered by the trademark holder during the period of infringement, including reasonable cost incurred to stop the infringement; or
c. If the above profit or loss cannot be properly calculated, the court will decide maximum RMB 500,000 as the compensation.
It shall be noted that in most trademark infringement cases, since the collection of evidences for profit and loss, especially those accounting material, are difficult, the trademark holder usually cannot be able to prove the exact amount of profit or loss. Under such circumstances, the amount decided by the court will be below RMB 500,000.
Erex Chen
erexcxl@yahoo.com.cn |
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leidelaohu
Wonder Wit
Joined: June 11, 2007
Posts: 3777
Status: Offline
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| Posted:
Sep 09, 2008 - 11:48 PM |
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| erexchen wrote: |
| Reverse Passing-off in Trademark Infringement |
This is totally stupid and something Dell and every other computer company and half the automakers on earth do all the time.
They should spend their efforts stopping cars from running red lights instead of pulling this ridiculous crap. |
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Ninja80
Newbie
Joined: Sep 25, 2008
Posts: 2
Status: Offline
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Sep 25, 2008 - 04:50 PM |
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| Post subject: Work Visa and Bankruptcy of Company |
I am impressed by all the knowledge that is shared on this forum and would love to get some help on a visa issue.
My work visa and residence permit was renewed recently, all approved and good.
Now the company that I am working for is facing bankruptcy and I wonder what will happen if that happens.
Will my residence permit be automatically canceled?
Will I get a notification of this?
Is there a strict control of this? Is there any way that they just won't find out?
The company has still not payed the service fee to the HR company handling the visa, should I offer to pay this out of my own pocket in order to maybe keep my residence permit? (I have 6 more months on it)
What possible implications will it have if I don't have a proper "release letter" from my current company when I find a new job?
All advice would be much appreciated!
Thanks! |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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Sep 25, 2008 - 06:42 PM |
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The bankruptcy in China is a bit complicated and usually need a long time. In most cases, if the company has financial difficulty, it will find way to resolve it, or when it cannot resolve the problem, it prefer to deregister it instead of filing bankruptcy. This situation usually happens to small company. For large company, it is possible it will file bankruptcy officially.
So my advice is that you shall keep an eye to the development of the company. If it is unable to pay the salary, you'd better ask your company to issue a release letter to you at an early stage and you can find another company for work.
With regards the service fee, if it is your company who sign service agreement with the HR company, then it is its obligation to pay.
Above is for your reference.
Erex Chen, attorny at law
erexcxl@yahoo.com.cn
V & T Law Firm |
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Ninja80
Newbie
Joined: Sep 25, 2008
Posts: 2
Status: Offline
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Sep 25, 2008 - 07:19 PM |
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Thank you so much for your answer! I happen to know that we are close to bankruptcy as I am involved in the financials of this very small WFOE, the staff has been notified that our services are no longer needed and we were payed uptil last week, thanks to nice managers. Can you explain to me what would happen to my residence permit in the case of deregistration and bankruptcy respectively? Given the current visa situation in China, I am worried that I will be forced to leave China on a short notice and/or have problems coming back, having to go to my home country to apply for a new visa.
Thanks a million! |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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Sep 26, 2008 - 01:38 PM |
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If you can find a new company, it will assist to update your work permit as well as residence permit. |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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Oct 05, 2008 - 07:16 PM |
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Establishment of Foreign-invested Advertising Company in China
The Administration Rule on Foreign-invested Advertising Enterprise (hereinafter refer to “the Rule”) is revised by the General Administration of Industry and Commerce and the Ministry of Commerce and will come to force on October 1, 2008.
The Rule sets new regulation on the types of foreign-invested advertising company, conditions for investors and setup procedure.
A. Three types of foreign-invested advertising companies
a) Sino-foreign equity joint venture;
b) Sino-foreign cooperative joint venture;
c) Wholly foreign-owned venture.
B. Conditions for establishment of foreign-invested advertising company
The Rule sets conditions for the investor who is going to set up the advertising company:-
a) For Sino-foreign equity joint venture and Sino-foreign cooperative joint venture, the investors to the advertising company shall be:
(i) The investor shall be enterprise who engages in the business of advertising;
(ii) All investors shall have been established and operating for at least two years;
(iii) Each investor shall have good business operation result.
It shall be noted in the old law of establishment of these two types of advertising company, the shares the foreign investors can hold shall be no more than 70%. This new Rule has cancelled this limitation.
b) For wholly foreign-invested advertising company, the foreign investor shall be:-
(i) The investor shall be enterprise who engages in the business of advertising;
(ii) The investor shall have been established and operating for at least three years
C. Procedure for setting up the foreign-invested advertising company
a) Procedure for setting up Sino-foreign equity joint venture and Sino-foreign cooperative joint venture
(i) Approval by the administration of industry and commerce
The Chinese investor shall be responsible for submitting the following documents to the local administration of industry and commerce where it is located and the local administration shall give its initial opinion for approval. Then the Chinese investor shall submit to the administration at provincial level which is authorized by the state administration for approval, or submit to the administration at provincial level for transferring these documents to state administration.
1) Application letter;
2) Company name prior approval notice;
3) Shareholders or BOD resolution;
4) Project suggestion letter and feasibility research report;
5) Each investor’s registration certificate;
6) Each investor’s bank credibility;
7) Advertising administration regulation;
 Initial opinion for approval by local administration.
The state administration or the authorized administration at provincial level shall approved or not within 20 days upon receipt of above documents.
(ii) Approval by department of commerce
After the state administration of industry and commerce or its authorized administration at provincial level issues Approval Opinion to the Foreign-invested Advertising Enterprise Project, the Chinese investor shall submit the following documents to the department of commerce at provincial level where the Chinese investor is located. After approval by the department of commerce, the Approval Certificate shall be issued, or in case not approved, written reason shall be given.
1) Approval Opinion to the Foreign-invested Advertising Enterprise Project issued by the state administration or its authorized administration at provincial level;
2) The contract and article of association of the advertising company to be set up;
3) Feasibility research report;
4) Each investor’s registration certificate;
5) Each investor’s bank credibility;
6) Company name prior approval notice;
7) The BOD member listing and appointment letter;
Initial opinion for approval by local department of commerce.
(iii) Registration
The foreign investor shall apply for registration at state or local administration of industry and commerce with the approval documents as well as other required documents.
b) Procedure for setting up wholly foreign-invested advertising company
(i) Approval by the administration of industry and commerce
The foreign investor shall be responsible for submitting the following documents to the state administration of industry and commerce or authorized administration at provincial level.
1) Application letter;
2) Shareholders or BOD resolution;
3) Project suggestion letter and feasibility research report;
4) Each investor’s registration certificate;
5) Each investor’s bank credibility;
6) Company name prior approval notice.
The state administration or the authorized administration at provincial level shall approved or not within 20 days upon receipt of above documents.
(ii) Approval by department of commerce
After the state administration of industry and commerce or its authorized administration at provincial level issues Approval Opinion to the Foreign-invested Advertising Enterprise Project, the foreign investor shall submit the following documents to the department of commerce at provincial level where the Chinese investor is located. Within 20 days upon receipt of the following documents, the department of commerce at provincial level shall approve or not approved. If approved, it shall issue Approval Certificate.
1) Application letter;
2) Approval Opinion to the Foreign-invested Advertising Enterprise Project;
3) Project suggestion letter and feasibility research report;
4) Each investor’s registration certificate;
5) Each investor’s bank credibility;
6) Article of association.
(iii) Registration
The Chinese investor shall apply for registration at state or local administration of industry and commerce with the approval documents as well as other required documents. |
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rustkie
Reacher
Joined: Sep 08, 2005
Posts: 248
Status: Offline
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Oct 06, 2008 - 12:20 PM |
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Hi, I want to ask if its possible now to apply the working visa in Hongkong? thanks
Any information will be highly appreciated.
Thanks
Rusty |
_________________
ღ(｡◕‿◕｡)ღ It is not the strongest of the species that survive, nor the most intelligent… but the ones most responsive to change ღ(｡◕‿◕｡)ღ |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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Oct 06, 2008 - 02:19 PM |
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As far as I know, this may be decided by your nationality. Citizens of some countries can apply for it in HK, but others need to back to their home country. |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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| Posted:
Oct 29, 2008 - 07:59 PM |
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Detailed Implementation Rule of Employment Contract Law
Following the promulgation of Employment Contract Law which came into force from January 1, 2008, China recently adopted the Detailed Implementation Rule of Employment Contract Law (hereinafter refer to the Rule) and this new law became effective from September 18, 2008. The Rule is complementary to the Employment Contract Law and there are several aspects for attention.
A. Further Regulating the Conclusion of Employment Contract
According to the Employment Contract Law, the company shall sign written contract with its employee within one month after using the employee. If the company fails to sign a written contract with the employee after using the employee for more than one month but less than one year, it shall pay double monthly salary to the employee. If the company fails to sign written contract with the employee after using the employee for no less than one year, an unfixed-term contract shall be regarded to have been concluded.
However, if it is the employee, not the company, who refuses to sign the contract, what will happen? The Employment Contract Law gives no answer in this regard. Actually this situation can happen to some employees. Will the company be penalized like above?
According to the Rule, within one month after using the employee, if the employee, after receiving written notice from the company for conclusion of contract, refuses to sign a written contract with the company, the company shall send written notice to the employee and terminate the employment. The company is not liable for severance payment.
If the employee refuses to sign written contract with the company after the company uses the employee for more than one month but less than one year, the company shall send written notice to the employee and terminate the employment. For this situation, the company shall pay severance payment to the employee.
In conclusion, a written contract is a must in the employment.
To be continued |
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MoonOverMiami
Raver
Joined: Jan 07, 2008
Posts: 460
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Oct 29, 2008 - 09:52 PM |
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Hi Erex!
I was under the impression that an employee cannot work without a contract. Have they changed the regulation now where the employee has a probationary period of one month where they do not have to have a contract?
Does this also apply to employees who are renewing their contract? Say someone who has been working 10 years at the company refuses to sign a new contract. Within 30 days after the old contract ended, the company can rescind the offer and they do not need to pay this employee 10 months (1 month for each year of service) severance pay?
Also, did you catch what was said about the vacation days? The gov't has put companies in a bind by making the new rules effective Sept 18th...and now companies are scrambling to have their employees take vacation days before the end of the year so they don't have to pay 3x the base salary. |
_________________
"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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| Posted:
Oct 31, 2008 - 08:59 AM |
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Hi
The probationary period is part of the whole employment term so the contract shall be signed accordingly.
If it is the employee who has been working 10 years at the company refuses to sign a new contract, the company is not liable to sign the contract and the employment shall be terminated. Under such circumstances, the company shall not liable to pay 10 month sverance payment to the employee.
With regards the vacation days, according to the law effective from January 1, 2008, the employee can have 5 vacation days if he has been working in the company for no less than 1 year but less than 10 years. 10 vacation days if he has been working in the company for no less than 10 years but less than 20 years. 15 vacation days if he has been working in the company for no less than 20 years.
Above is for your reference.
Regards
Erex Chen
erexcxl@yahoo.com.cn |
Last edited by erexchen on Oct 31, 2008 - 05:18 PM; edited 1 time in total |
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MoonOverMiami
Raver
Joined: Jan 07, 2008
Posts: 460
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Oct 31, 2008 - 10:40 AM |
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Hi Erex,
Thanks for the clarification!
Regarding the vacation days, didn't they pass a new law on Sept 18 for compensating unused vacation days?
The one scenario I have a question on is if the employee refuses to take the vacation days, then why would the company be liable to compensate them 3x the salary for the unused portion? Also at the symposium I attended, the speaker mentioned that the employee can waive their rights to the compensation...I'm sure I misunderstood so I was hoping you may have heard something about this.
Thanks again! |
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"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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underh20
Shanghai Royalty
Joined: Sep 27, 2006
Posts: 9883
Location: EOA Seminar
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Oct 31, 2008 - 10:41 AM |
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If the employee refuses, you still have to pay. |
_________________
بارك الله ، بارك الله |
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MoonOverMiami
Raver
Joined: Jan 07, 2008
Posts: 460
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Oct 31, 2008 - 12:17 PM |
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| underh20 wrote: |
| If the employee refuses, you still have to pay. |
This would be terrible news for employers. Even at the minimum wage of 960 per month, an employee would be entitled to rmb133.95 per day for an unused vacation day....making it a total of rmb1,339.50 for an employee of 10-20 yrs just for the unpaid vacation days (10, in this case). A company has 10 employees like this, then they have to pay a total of rmb13,395...100 employees, rmb133,950...etc. This could hurt some industries more than others.
Now imagine what would happen to companies that sign contracts with a higher base monthly salary...like for line, middle, and upper managers.  |
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"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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Oct 31, 2008 - 12:36 PM |
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In most cases, I think the employee shall be happy to take the vacation. |
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yu888
Board Deity
Joined: Jan 25, 2003
Posts: 18037
Location: ZhongShanParkArea SH
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Oct 31, 2008 - 01:36 PM |
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underh20
Shanghai Royalty
Joined: Sep 27, 2006
Posts: 9883
Location: EOA Seminar
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Oct 31, 2008 - 01:38 PM |
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^ Ditto. |
_________________
بارك الله ، بارك الله |
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MoonOverMiami
Raver
Joined: Jan 07, 2008
Posts: 460
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Oct 31, 2008 - 02:20 PM |
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Exactly my point. At the law update symposium I went to, the speaker said (in the case of contract signing) that there will be employees who will intentionally refuse to sign the contract in an attempt to cash in on the 2x salary after the first 30 days of employment. The fix is to send the employee a termination notice within the 30 days and the company would not be held liable for any additional compensation other than what has already been earned.
I am surprised (but also not surprised at the same time) the lawmakers did not take this into consideration when they passed this law. |
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"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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Nov 03, 2008 - 02:46 PM |
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B. Register of Employee by the Company
According to the Employment Contract Law, the company is liable to keep a registration book of all its employees.
The main content of the book includes:-
a) Name of the employee;
b) Employee's ID number;
c) ID address and current address;
d) Contact;
e) Type of employment contract;
f) Date for employment;
g) Employment term;
h) Other necessary information.
If the company fails to have the registration book, the government can send an order and if the company still refuses to obey, the company may be penalized with RMB 2,000 to RMB 20,000.
to be continued |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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| Posted:
Nov 06, 2008 - 03:48 PM |
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C. The working year shall be calculated accumulatively in case the employee is transferred to other company for work (Change of employer)
When companies have investment relationship, or the company is undergoing merger and acquisition or separation, the employee may be transferred to other company for work. Under such circumstances, how to calculate the employee’s working year?
According to the Rule, if the company transfers its employee to other company for work, the working years in the old company shall be calculated into that in the new company. When the employment contract is terminated and the company needs to pay severance payment to the employee, the new company needs to pay severance payment according to the working years in both the old company and the new company. However, if the old company has paid the severance payment for the working years the employee spent in the old company, the new company is not necessary to pay that part again.
For example, the employee has worked 3 years in the old company and then is transferred to the new company. After 2 years, his employment is terminated and the employee is entitled to severance payment. Then the new company shall pay severance payment equivalent to 5 months salary to the employee. However, if before he is transferred to the new company, the old company has already paid 3 months’ salary as severance payment, then the new company only needs to pay 2 months’ salary as severance payment.
To be continued
By Lawyer Erex Chen
erexcxl@yahoo.com.cn
V & T
www.vtlaw.cn |
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MoonOverMiami
Raver
Joined: Jan 07, 2008
Posts: 460
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Nov 07, 2008 - 09:59 AM |
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To summarize the signing of the contract:
1. The employer has 30 days to sign an employee to a contract once the employee begin work.
2. If the contract is not signed within the first 30 days, the employer is liable to pay 2x salary counting from the 31st day and ending the day the contract is signed. The first 30 days is still 1x the salary.
3. If the employee refuses to sign the contract within the first 30 days, the employer can withdraw the offer and only pay the employee what is owed. No severance is needed.
3a. In the case of renewing a contract, the employer can rescind the offer within 30 days after the old contract has ended and is not liable to pay severance for the years the employee had been working at the company.
4. After the contract is signed, if the employer decide the employee's services is no longer needed due to poor performance, the employer can cancel the contract and pay:
4a. 1/2 month salary if the employee has only been working for 6 months or less
4b. 1 month salary if the employee has been working between 6 months to 1 year
Am I mistaken or missing any information? |
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"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 218
Location: Shanghai
Status: Offline
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| Posted:
Nov 07, 2008 - 04:13 PM |
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In case the old fixed-term employment contract becomes expired and it is the company who refuses to renew the contract, the company shall pay severance payment. However, if it is the employee who refuses to renew the contract under which the condition is the same or better than the old contract, then the company is not liable to pay severance.
The company cannot terminate the contract directly due to poor performance. Ususally the employee needs to be trained or adjustment of job position. After that, if he is still unqualified, then the company can terminate the contract with 30 days prior notice and pay severance. |
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MoonOverMiami
Raver
Joined: Jan 07, 2008
Posts: 460
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Nov 07, 2008 - 06:51 PM |
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Great, thanks for clearing it up Erex! |
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"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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