Weekly China Trademark News Updates

April 27, 2022

1. The Beijing High Court released typical cases of intellectual property punitive damages

On April 25, 2022, the Beijing High Court held a press conference to release the Guidelines for the Application of Punitive Damages in Civil Cases of Intellectual Property Infringement to further standardize the applicable standards of punitive damages in civil cases of intellectual property infringement, and to increase knowledge in accordance with the law. There are 51 articles in the guidelines, which specifically stipulate the substantive and procedural issues involved in the application of punitive damages, the calculation method, etc.

Click here for more information (Chinese/English)

2. Baidu’s “Xiaodu” voice command was protected by the courts under the Anti-Unfair Competition Law

Baidu Online Network Technology (Beijing) Co., Ltd. (“Baidu”) sued Beijing Zile Technology Co., Ltd. (“Zile”) to the court on the grounds of unfair competition.

The court found that “Xiao du,” as the product name of the smart speaker launched by Baidu, had gained a high reputation and great influence in the market after extensive use and promotion, and it belongs to the name of a commodity that had a certain influence specified in Article 6 of the Anti-Unfair Competition Law.

Although voice command is not expressly listed in Article 6, from the perspective of the text, its purpose is to prevent confusing behavior and avoid misunderstanding by the relevant public. Therefore, although voice command comes after than commodity name, business name, network domain name, website name, etc., and is of a different type, however, as long as it can establish a specific connection with the good or service and its provider, and has a certain influence, it falls under Article 6.

The court reasoned that Baidu’s voice command “xiao du xiao du” became an indispensable and frequent specific voice command for users when using Xiaodu smart speakers and had established an inseparable relationship with the product’s human-computer interaction and other functions and services. Many media reports showed that Baidu had started to use “xiao du xiao du” voice commands for its smart speaker products since 2017 to wake up and operate the device. Through a large number of extensive and various forms of publicity and promotion, the relevant public recognized that “xiao du xiao du” refers to the corresponding services provided by Xiaodu smart speakers, that is, the voice command had established a clear and stable association with Baidu and its products, and already has a high reputation and great influence. To sum up, the court found that Baidu has legitimate rights and interests in the voice command of “xiao du xiao du,” which should be protected by Article 6.

Zile is the producer and seller of the Du Yaya learning machine. According to its promotions, “Xiao Du” was used as a product name, and “xiao du xiao du” was used for voice commands for wake up and operation of its product, both of which were provided by the company. Baidu’s “Xiaodu” and “xiao du xiao du” had been widely used and publicized as product names and voice commands and had a certain popularity and influence. At the same time, Xiaodu smart speakers and Du Yaya learning machines were similar products in terms of functions, audiences, sales channels, etc. Zile still uses “Xiaodu,” which shared the same pronunciation with Baidu’s “Xiaodu” only differs in Chinese characters to its products. It also used the exact same voice commands “xiao du xiao du” as Baidu to awake and operate its products, which was subjectively malicious, and objectively likely to cause confusion among the relevant public. That is, the public is likely to misunderstand that Du Yaya learning machines and Baidu’s Xiaodu smart speakers were related in terms of product development, technical support, licensing cooperation, etc. Although the Chinese character between the two “Du” was difference, but user feedbacks proved that there were certain levels of confusion and mistaken. Therefore, the court found that Zile’s use of “Xiaodu” and “xiao du xiao du” violated Article 6 of the Anti-Unfair Competition Law and constituted unfair competition to Baidu.

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