Will Lashou Lose its Trademark Battle after Apple?

—Analysis on Lashou trademark dispute

According to a recent news report (note: the link is in Chinese), Lashou Company, the largest daily deal website in China, owns the right of Chinese trademark “拉手网”, but the English trademark “lashou” is owned by “Shenzhen Harmonious Network Limited ” (the former Shenzhen Qiandao Ecommerce Ltd, hereinafter referred to as Shenzhen company) who applied the trademark in February of 2012, 2 months earlier than Lashou company. Shenzhen declared that the company may defend its legal interests. In addition, due to the “lashou” trademark is now of the ownership of the Shenzhen company, we have also noticed the concerns of the continuing use of lashou.com by Lashou Company.

In light of the aftershock of iPad trademark battle, the social media has concentrated on the issue and even linked it to the IPO withdrawal. But in my opinion, “Lashou” trademark dispute is distinct from the case of “iPad”. Lashou company is unlikely to pay so much for the dispute settlement, and the reasons are as follows: (Previous Posts on our website):

I. The belonging of mark “Lashou” has not been finally decided, and thus Shenzhen company cannot start a legal act in a short period

Although in the above report, “Lashou” is of Shenzhen company’s ownership by Chinese law. Yet, after retrieval on the website o Trademark Office of PRC, we found that Shenzhen company’s marks in Class 35 (Business Information Agency) and Class 36 (agency) are in their oppositions. According to Chinese trademark law, any opposed marks could not be protected as a registered trademark as a suspending mark. Therefore, during the opposition, opposition review and the administrative lawsuit, the effect of trademark is still undetermined, whereby Shenzhen company is not the owner of “lashou” by law and shall have no right to initiate a legal action.

Furthermore, unlike iPad, we just see a first application but not an “early” application of Shenzhen company, for Lashou.com had already be famous when the time the application was filed. So, I see a high chances for Lashou.com to win the opposition in once it could prove it being the unregistered well-known trademark when the application by Shenzhen company, and thus the dispute could be pulled back from a further mess. (The report said the opposition has been rejected, but as showed by the retrieval, the opposition is still pending.)

II. Loss of the trademark “Lashou” will not affect the use of ” lashou.com “

In recent years, due to the rise of the Internet, to a certain extent, the domain name plays the same role with the trademark to some content which causes the inevitable conflict. But in the opinion of the author, the dispute is less likely to affect the normal use of the domain name. According to the provision of “Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws to the Trial of Civil Dispute Cases over Domain Names of Computer Network “, only when the user of domain name is“malicious”, it can determine the user tort. And the “interpretation” also provides: “If the defendant has adduced evidence to prove that the domain name he held has already been well-known before the dispute arises, and that the domain name can be distinguished from the registered trademark, domain name, etc of the plaintiff, or he is under other circumstances which can prove his innocence, the people’s court may come to the conclusion that he is not malicious.”

Lashou company use the “lashou.com” earlier than Shenzhen company’s application and always engaged in group purchase business from the very beginning. On the otherwise, the reputation of “lashou.com” is higher than Shenzhen Company. Therefore, Lashou company is not “malicious”. Even though Shenzhen company obtain “lashou” trademark in the future, it will not affect Lashou company continue to use the “lashou.com”.

III. “Lashou” is not the main trademark of Lashou company, they have enough time to re-establish an English brand

Finally and most importantly, the reason of that the author think Lashou Company will not repeat the mistake of Apple Corp is that “lashou” is not the main trademark. Unlike IPAD, Lashou Company’s main business area is in Chinese mainland. Chinese mainland consumers identify “拉手网”(Chinese) far more than the alphabet “lashou”. In addition, even if Lashou Company going out ofChina, they probably won’t to use “lashou ” as their English trademark because “lashou” is Chinese phonetic alphabet which has not much recognition in overseas. As previously mentioned, who will own the trademark “lashou” will be no final conclusion in a short time. Lashou Company has enough time to establish another English brand, and not very costly.

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