Legal Notebook

Do you think this title is ridiculous? Many people may nod their heads. However, the fact is even more ridiculous. Wang planned to decorate his new apartment. He signed a contract with the “branch” of a well-known K decoration company and paid. Unfortunately, the “branch” suddenly went out of business after received the payment. Wang requested K to perform the contract, but he was told that the counterparty signed the contract was not the real branch of K. Wang checked the name of the party, and he found this party did not registered. It is not easy for Wang to…

Mrs. Wang worked in Company A for 6 years, and she worked in the Administration Dept.. Came back from the maternity leave, she often came to work late and left early, and became forgetful, which was not the right working attitude. No doubts, she was disqualified in the performance evaluation. Company A transferred her to the finance dept. for the reason that she was incompetent. Afterwards she was disqualified in the performance evaluation again. Then Company A dissolved the labor contract in accordance with Article 40, Section 2 of the “Labor Contract Law”. However, the court held that the dissolution…

On June 28, 2017, the State Intellectual Property Office promulgated “Administrative Measures for Priority Examination of Patent Applications” ((2017) Order No. 76, hereinafter referred to as the “New Measures”), which has come into force on August 1st, 2017. Compare with “Administrative Measures for Priority Examination of Invention Patent Applications” implemented on August 1st, 2012 (hereinafter referred to as the “Old Measures”), the “New Measures” has optimized the priority examination, such as the scope of the application, the applicable circumstances and procedures. The specific highlights are as follows: 1. Expanding the scope of the application In the “Old Measures”, the priority…

It is common that many sellers would mark their shops, no matter online ones or offline ones, with “Exclusive Right to Sell XX”, “XX Brand Discount Shop” and etc.. When a seller is selling counterfeit products, it is an obvious trademark infringement behavior. What if a seller sells certified products, whether it shall be deemed as a trademark infringement behavior? It is possible. Then what is the reason? In order to clarify the reason, we shall discuss the fair use of a trademark firstly. Generally, the fair use of a trademark includes the descriptive use and nominative use. Article 59…

Company A’s “Sales Regulations” specifies that, where the price of any transaction is lower than the normal price level, such transaction shall be approved by the accounting dept. in advance, otherwise, the responsible person shall be recorded for a serious mistake. Sales manager Qian sold products to his friend’s company at a lower price, which brought the loss of 0.17 million to Company A. Company A issued a “Notice on the Dissolution of a Labor Contract” to Qian, in which it dissolved the labor contract with Qian for the reason that he had seriously violated Company A’s internal rules and…

Lee, the shareholder of a limited liability company was dead. He did not make a will. His successors included his wife and son. Both wanted to be listed as the shareholder of the company, and recommended Lee’s wife to take over the chairman of the board, which was Lee’s position. The other shareholders did not willing to accept their requests. But they did not know whether they had the right to refuse such requests. This is not rare in practice. Such cases shall be regulated in accordance with the “Law of Successor” and the “Company Law”. The share is a…

Company A dissolved the labor contract with Zhang. Then Zhang filed a labor arbitration on the grounds that company A illegally dissolved the labor contract. Hang also requested Company A to resume the labor relationship, and provide retroactive wages from the date when Company A made the dissolution decision, until the date of entry into force of the judgment. In addition, Zhang also request a compensation amount to 25% of the retroactive wages. After the labor arbitration and litigation, the court judged Company A to resume the labor relationship, and pay the retroactive wages. But the court did not order…

Zhao was a sales manager of a Shanghai company, and his monthly base salary was RMB17,000. In September, his actual income was RMB37,650, which included the monthly base salary and the sales commission. Due to the adjustment of the management structure, on 3rd October, the company made the decision to cancel Zhao’s position, and then informed Zhao to dissolve the labor contract after 15 days. Afterwards, Zhao filed an arbitration request, in which he insisted the company failed to notify him in written 30 days in advance, and required the company to pay the “Wages in lieu of Notice” (hereinafter…

China’s current “Trademark Law” stipulates 4methods on calculating the compensation for infringement: theplaintiff’s loss, the defendant’s benefits, the reasonablemultiples of the royalties of a registered trademark, and thestatutory compensation. However, the data [1] shows that thestatutory compensation has been applied in more than 90% of thetrademark infringement cases, in which the courts are in favor ofthe plaintiff, in practice. According to paragraph 2, Article 16 of the“Interpretation of the Supreme People’s Court on Certain IssuesConcerning the Application of Law in the Trial of Civil CasesInvolving Trademark Disputes” (hereinafter referred to as to the“Interpretation”), when determining the amount of compensation,many factors…

Bai worked in a Jiangsu chemical industry company, and his position was related to the occupational disease hazards. The company informed Bai to take a pre-departure occupational health examination (hereinafter refers to the “Examination”) via EMS after his labor contract had been expired. But Bai did not take the Examination. Instead, he brought a labor arbitration on the illegal termination of the labor contract against the company, with the reason that the company did not arranged the Examination. After the arbitration and litigation, the court finally ruled in favor of Bai. (See (2015) Ning Min Zhong Zi No.1725 Civil Judgement)…