Category Archives: Trademark

Does Using a Trademark with Common Meaning Constitute Trademark Infringement in China?

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(By Luo Yanjie) According to Chinese legislation, a mark which has a common meaning in normal ways may be registered as a trademark where it has acquired distinctiveness through use and is readily distinguishable. If being registered, the mark with a common meaning would be protected under the Trademark Law. However, in practice, a competitor may use the trademark against the exclusive right holder, with a defense that the trademark has common meaning. Today, we will introduce a successful case where the court is in favor of the exclusive right holder of the trademark.

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Anheuser-Busch InBev Used the Packaging of its Beer Bottle to Defeat against Chinese Copycatted Competitor

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 (By You Yunting) Recently, we introduced that Zhejiang Xiyingmen Beer Company constituted trademark infringement through the use of recycled Budweiser’s beer bottle. In today’s post, we will introduce an unfair competition lawsuit where Zhejiang Xiyingmen Beer Company used the similar packaging and presentation with that of Budweiser-sponsored Harbin Beer.

Introduction to the Case:

Appellant (Defendant at the first instance): Xiyingmen Beer Company

Respondent (Plaintiff at the first instance):  Anheuser-Busch and Harbin Brewery Group (the “Harbin Brewery”)

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Regulations against Intellectual Property Malicious Litigation in China

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    (By You Yunting) Malicious litigation refers to instituting a lawsuit through fictional facts and falsified evidences for the purpose of receiving unlawful benefits. In today’s post, we will introduce some provisions about malicious litigation in intellectual property laws and civil procedure law in China.

    I. Provisions on wrongful litigation injunction can be applied into malicious litigation.

    In litigations concerning patent, trademark and copyright, the right holder always applies for such litigation injunctions as termination of infringement, evidence preservation and property preservation. Where the court approved the application, if the litigation is proved to be malicious, the respondent may require the applicant to compensate for such losses. Article 13 of the Several Provisions of the Supreme People’s Court on the Issues Concerning the Application of Law to Terminating Infringement upon Patent Prior to Litigation stipulates that:

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Competitor Using Recycled Budweiser’s Bottles Constituted Trademark Infringement

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(By You Yunting) Our website has previously  introduced the case where ABlnbev (China) Sales Co., Ltd filed a lawsuit against its competitor, who was unauthorized to use the bottles with the trademarks “Budweiser” and “ABlnbev”. Recently, the Shanghai Higher People’s Court made a final judgment in favor of ABlnbev (China) Sales Co., Ltd.

Introduction to the Case:

Appellant: (Defendant at the first instance): Xiyingmen Beer Company (the “Company Z”)

Respondent: (Plaintiff at the first instance): ABlnbev (China) Sales Co., Ltd

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Beijing Court Rejected HUGO BOSS‘s Opposition against “H30SS” Trademark

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(By Luo Yanjie) China is facing a worsening situation with regards to serious trademark squatting. With more and more registrars rushing to register possible trademarks that once were used by famous enterprises, there is little help for enterprises holding such famous trademarks. For example, a registrar has just succeeded in the grant of a trademark, similar with what HUGO BOSS AG had, under the class for cosmetics and fragrances. Today we will introduce this case as follows.

 

Introduction to the Case:

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Korean Game Company Defeated China Local Agent for Cancelleation of Rush-registered Trademark

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(By Luo Yanjie) Today we will introduce an example of a trademark squatting case where a Chinese online game operator rush-registered a trademark. In this case that trademark was canceled by Trademark Review and Adjudication Board.

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Unilever Defeats Squatting of POND’S Trademark in China

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(By Luo Yanjie) Today we will introduce a typical example of a trademark squatting case. Unilever recently succeeded in defeating trademark squatting after it undertook a nine year objection to prevent a similar trademark from being registered under a different class.

Case introduction:

On May 28, 2003, Mr. Shi filed a personal application for “POND’S/ 旁氏” (the “disputed trademark”) under Class 5 for tonics (medicine), baby milk powder, air fresher, sanitary napkins and dental lacquer. However, in the period of trademark opposition for primary publication, Unilever filed an opposition, alleging that its prior registered “旁氏/POND’S” trademark (the “reference trademark”) had become a well-known trademark in China. Unable to achieve a supporting judgment from the Trademark Office and the Trademark Review and Adjudication Board (the “TRAB”), Unilever brought the case to the court.

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Are Zong Qinghou’s Proposed Trademark Reforms Viable?

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(By You Yunting) Recently, Chairman Zong Qinghou of Hangzhou Wahaha Group, acting as NPC representative (NPC refers to National People’s Congress), proposed a draft proposal revising the Trademark Law and strengthening the protection of well-known trademarks. We have previously introduced this case in the article Wahaha Group suing KMPG in China, please read this post for further background information. In my opinion, his draft indicates that Chinese entrepreneurs have already found that the growth of Chinese enterprises will be limited unless they improve the standard of protection offered under intellectual property rights law. However, his draft only focused on the intellectual property rights protection of the Wahaha Group, did not account for the interests of the public, and required special protection for the Wahaha Group beyond conventional protection from the government. As such, his draft is not practical.

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Uber’s China Imitator Didi Taxi Meets Trademark Problems

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(By You Yunting) In China, there are two apps similar with Uber, i,e, Didi Taxi and Kuaidi Taxi. According to news reports, recently, a Hangzhou-based company wondered that Didi Taxi (English-transliterated from Chinese“嘀嘀打车”), a popular taxi booking apps in China, has infringed the exclusive right to its trademark under Class 9. (note: the link is in Chinese). But the operating company of Didi Taxi has no response.

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How Samsung Obtained Its Camera Trademark Under Class 9 Through Litigation in China

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(By You Yunting) Initially in its application, SAMSUNG failed to obtain its Chinese-transliterated trademark for cameras by virtue of a prior-registered trademark under Class 9 for screen products.

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China Customs Requires that Patent Holders Update their Valid Certificates

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(By You Yunting) We have already introduced today’s topic in our previous post how to record patents with China Customs. For more background information, please read this article first. Recently the Chinese General Administration of Customs has updated its previous recordation system for intellectual property rights enforcement and began to utilize this latest recording system from March 1, 2014. This updated recording system puts forward a new requirement that upon patent recordation, the right holder of a patent that has been recorded by Customs must present valid documents of the relevant patent rights before the given deadline, otherwise the patent recordation will be canceled.

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China Court Decision Repeals TRAB’s Ruling for Unified Review Standard

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(By Luo Yanjie)Abstract: Pursuant to Chinese Trademark Law, those applications having unhealthy influences shall not be used as trademarks. “Unhealthy influences” refers to a negative, or inactive influence that may detrimental to the interests and social order of the public, including political, economic, cultural, religious and ethnic allusions  which are a registered trademark itself or a mark that is applied to goods or services. However, the Chinese Trademark Office should have a consistent attitude regarding the trademark adjudication standard for these unhealthy influences.

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Lessons to Be Learned from Apple Losing Their Apple Trademark for a Game Console in China

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(By You Yunting) In the end of 2013, the Beijing Higher People’s Court rejected Apple Inc.’s trademark opposition towards “苹果” trademark (read “Pingguo” in Chinese and referring to “Apple” in English) under Class 28 for game console against Zhongshan Readboy Electronics Co., Ltd. Thereafter, Apple Inc. has gone through 4 procedures, including the Trademark Office’s opposition proceeding, TRAB’s review procedure and two administrative actions and ultimately lost the “苹果” trademark under Class 28 for game console. The following are abstracts from the judgment of the final trial and our comments.

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Why Court Decision Exempts Wal-Mart From liabilities of Trademark Infringement?

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(By Luo Yanjie) Abstract: In the event that a party unknowingly sells goods that infringe upon another party’s exclusive right to use a registered trademark but can prove that it has obtained the goods lawfully and is able to identify the supplier shall not be held liable for damages. In a case that a trademark holder separately sues sellers, despite no laws requesting the manufacturers to join in the lawsuit, for the purpose of preventing contradictory judgment, the courts could notify him or her requesting joinder. It is the manufacturers that could decide whether acting as a third party to join the lawsuit.

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Why Could “Kellogg Company” not be Registered under Class 41 for Educational Services?

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(By You Yunting) Kellogg Company, an American multinational food manufacturing company, produces cereal and convenience foods, including cookies, crackers and fruit-flavored snacks. However, in China, someone tried to apply for “Kellogg” as a trademark under Class 41 for educational services. After discovering this, Kellogg Company filed an opposition, but suffered a setback at first in that both the TRAB and Beijing No.1 Intermediate People’s Court rejected its claim. After Kellogg Company appealed, Beijing Higher People’s Court supported its claims, on the ground that the disputed trademark infringed the prior enterprise name of Kellogg Company.

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