According to the report of hc360.com (the news is in Chinese), Beijing High People’s Court adjudicated the final judgment on the trademark opposition filed by Apple Inc (Apple) against Zhejiang Red Apple Electronic Co., Ltd. (Zhejiang Red Apple) on 28th November, 2011, Ltd, rejecting Apple’s opposition on the defendant’s registered trademark in class 9 of CCTV monitor. Till then the proceeding of the case for 10 years is finally ended up.
Early in November of 2002, Zhejiang Red Apple’s application of red apple trademark was approved by China Trademark Office, and afterwards opposed by Apple, who demanded no approval for the mark, for the similarity between the red apple image and the first applied Apple trademark. Despite the opposition, the trademark office approved the application and issued the “Image Trademark Opposition Ajudication”, (2007) Trademark Yi Zi No. 3887 on 27th August, 2007.
Shortly after the administrative decision, Apple applied for the reexamination, with the reasons that the opposed trademark is similar to the reference mark, which could infringe the copyright owned by Apple on the Apple trademark and may also arouse confusion among the public; the reference has acquired high reputation through wide use; the application of the opposed trademark is readily malicious.
On 4th May, 2010, the Trademark Review and Adjudication Board disapproved the application of the apposed red apple trademark (the administrative review on the case is relative slow, and the period has been sharply shortened currently). On the dissatisfaction on the administrative decision, Zhejiang Red Apple filed the administrative lawsuit in Beijing No.1 People’s Court in June of 2010, demanding the revocation of the Board’s adjudication.
The main argument in the lawsuit of Zhejiang Red Apple is the reputation acquired through use of the opposed trademark, furthermore, the purpose and sales channel of the opposed trademark is quite different from the reference trademark, thus the confusion could hardly be aroused. The court of the first instance heard the case in May of 2011 and made the judgment in July, maintaining the decision of the Board. Following, Zheng Jiang Red Apple lodged the appeal to Beijing High People’s Court in August of 2011.
Finally the High Court took Zhejiang Red Apple’s argument for the mark has acquired reputation through use and is identifiable enough to distinguish the product source therefore the final judgment supports the registration in class 9 CCTV monitor of the red apple image.
Bridge IP Law Commentary’s attorneys retrieved the marks of both sides (see the image at the beginning of the post), although the outline of the images is more or less similar, the pattern and color of the opposed mark is obviously identifiable from those of Apple mark, therefore the confusion could hardly be aroused for we believes the opposed mark could already distinguish the product source. Moreover, despite the marks are both in Class 9, there share no common applied groups. The applied groups of red apple include CCTV, punch card machine, signal light, acoustic alarm, battery, optical lenses and other appointed products, and thus are obviously different from the purpose and sales channel attached with Apple mark. However, we also notice that the sentence evade the claimed copyright infringement.
The case reflected the current status of China intellectual property right. And the experience may those transnational company gain from the case is to cover the application in all 45 classes and the groups for the avoidance of the infringement to the utmost extend.
Other recommended posts on our website:
1. How to apply for the trademark registration in China?
2. How to apply for the trademark record in China custom?
3. How to improve the success rate of trademark registration in China?
4. How to handle the trademark refusal?
5. How to renew the trademark in China?
6. Legal Issues concerning Trademark during the Exhibition in China
Author: Mr. Huang Mengren
Paralegal of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.
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