Could Co-Founder Rush-Register A Planning Trademark As His Own?

lehmanbrown

 (By Luo Yanjie) Article 15 of both the 2014 version and the 2001 version of the Trademark Law stipulated that an agent shall not rush-register trademarks of the principal or the represented. In practice, Article 15 is always used to prevent from rush-registration. The following judgment will introduce a typical rush-registration case with new ideas for reference.

 Introduction to the Case:

Re-appellant (plaintiff at first instance, appellant at second instance): LEHMANBROWN LIMITED (the “HK Company”)

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Full text of 2013 China Trademark Law

Notice: On August 30, 2013, China issued a new revision of Trademark Law which will come into force on May 1, 2014. We spent a week to translates the new revision of the Trademark Law into English and post it today. If any one needs to reprint our translated revision on web, please note the following content on the reprint page: This law is translated by Bridge IP Law Commentary http://www.chinaiplawyer.com.

                  Trademark Law of the People’s Republic of China

   ( Adopted at the 24th Session of the Standing Committee of the Fifth National People ‘s Congress on August 23, 1982, as amended according to the “Decision on the Revision of the Trademark Law of the People’s Republic of China”  adopted at the 30th Session of the Standing Committee  of the Seventh National People’s Congress on February 22, 1993, and  the “Decision on the Revision of the Trademark Law of the People’s Republic of China” adopted at the 24th Session of  the Standing Committee of the Ninth National People’s’ Congress on October 27 2001, and amended for the third time according to the “Decision on the Revision of the Trademark Law of the People’s Republic of China” adopted at the 4th Session of  the Standing Committee of the Twelfth National People’s’ Congress on August 30, 2013 )

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Trademark Law of the People’s Republic of China (2013, Comparison Version)

Noctie: On August 30, 2013, China issued a new revision of Trademark Law which will come into force on May 1, 2014. We spent a week to translates the new revision of the Trademark Law into English and post it today. If any one needs to reprint our translated revision on web, please note the following content on the reprint page: This law is translated by Bridge IP Law Commentary http://www.chinaiplawyer.com.

To help foreign friends better understanding of Chinese laws, today we would first publish a comparison of different versions between the 2001 version and the 2013 version.

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Legal Issues concerning Trademark during the Exhibition in China

In recent, more and more Chinese companies is developing their business outside China and thereby brings more chances for exhibition. Meanwhile, with the rapid economy development on China, the exhibition sponsored by China becomes more and more influential. Such exhibitions have become the key occasion for the release of new product and technology of the companies in China and abroad, which followed by many legal problems with the IPR matters are the most prominent ones. Bridge IP Law Commentary today will give our analysis on the issues related to the exhibition trademark.

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The Extension of the iPad Trademark Battle: Proview Charged iPad Distributor GOME in China

According to Guangzhou Daily, the widely concerned iPad trademark conflict is oiled by the battle between Proview and GOME (HKEx: 00493), the distributor of iPad. And the new dispute has been brought to the Shenzhen Futian People’s Court and heard on 30th, December, 2011.

Shenzhen Proview claims itself the legal trademark owner of iPad, and as investigated, GOME sold the tablet with iPad trademark in its stores with no license from GOME, therefore, the misconduct of GOME shall be the trademark infringement. Thereby, Proview demands GOME stop selling the tablet, destroy all the marks or package related to the infringement, cancel any propaganda concerning iPad and take all the expenses on the investigation, evidence collection and other reasonable costs.

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Matters for Attention in the Trademark Opposition

Recently, the Qiaodan Company (Qiaodan is the pronunciation of Michael Jordan’s name), a Chinese domestic sporting goods manufacturer, confronted trademark troubles on IPO in China, because Nike has opposed to 8 trademarks of Qiaodan, claiming that it might lead to the confusion with Nike’s “Air Jordan”. Nevertheless, such opposition was refused by China Trademark Office, and Nike filed no administration lawsuit afterwards.

The opposition filed by Nike to Qiaodan is based on the provision of the China trademark law:

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Matters for Attention in Trademark Refusal Review in China

It is reported that the British Lotus who will adopt “路特斯”, the transliteration of Lotus in Chinese, as its local brand in China due to a Chinese domestic company first registered the trademark of “Youth Lotus”. It’s also mentioned in the report that British lotus lost the trademark though it should have the chance to get it through the trademark refusal review. Today, Bridge IP Law Commentary will introduce you the system of review on the trademark refusal in China.

As regulated in the Article 32 of China trademark law:

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According to China Court’s First Instance Judgement, Apple Loses the iPad Trademark

According to the latest news, Shenzhen Media People’s Court judged on the iPad trademark conflict between Apple Inc (the “Apple”) and Proview Technology (Shenzhen) Co., Ltd. (the “Proview”), and Apple’s claim of Proview’s infringement against its trademark was rejected. That means the ownership of iPad trademark in China still belongs to Proview.

For this case, Bridge IP Law Commentary has expressed our opinions and analysis in the No “iPad” Chinese trademark right for Apple after payment in the transaction. And we anticipate that Apple may appeal to the higher court, while the case may end up in the consequence that Apple shall lose iPad trademark in mainland China shall the higher court maintained the judgment.

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Introduction of China’s Legal System of Trademark Renewal

 Highlight: The first registered trademarks after the promulgation of the trademark law in 1982 will be in the renewal period soon, and most of such trademarks now are owned by foreign invested companies. In this essay, Bridge IP Law Commentary will give our advice and analysis on the trademark renewal.

The system of trademark application was first carried out in China in 1982 with the promulgation of the Trademark Law, by which the period of validity of a trademark registered in China is ten years from the day of approval and can be renewed, otherwise it will be cancelled. Therefore, most first registered trademarks are coming into the renewal period in 2012 or 2013, and among which the trademarks registered by foreign invested companies occupy a higher proportion due to the weak awareness of the trademark of Chinese enterprises then. For this reason, we would like to remind foreign clients to apply for trademark renewal timely during the renewal period and the grace period. Today, our website will introduce and analyze China’s legal system of trademark renewal.

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Blizzard, Valve or Others, Who will get DOTA Trademark in China?

—Analysis of DOTA (the Defense of the Ancient) Trademark Dispute 

Highlight: Recently Blizzard voiced its concern over Valve’s attempt to trademark DOTA, a popular map of Warcraft III. Could Valve register the trademark, and what measures could Blizzard take to against Valve’s attempt? Bridge IP Commentary will give you our analysis. 

DOTA is the only officially recognized Warcraft RPG map by Blizzard Entertainment, who is furious about Valve’s attempt to trademark DOTA. “To us, that means that you’re really taking it away from the Blizzard and Warcraft III community and that just doesn’t seem the right thing to do” as commented by Rob Pardo from Blizzard.

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Can Apple Register iMessage trademark in China?

HIGHLIGHTS: Apple recently applied trademark registration for its “iMessage” in U.S., and no doubt such registration will also be conducted in China soon. Bridge IP Commentary will analyse the prospect for such registration in China and also introduce the related local trademark laws and regulations. 

It is reported that Apple (NSDQ: AAPL) filed three different trademark applications for “iMessage” with the USPTO recently. iMessage is Apple’s newly developed instant messaging software basing on mobile internet devices.

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