(By Luo Yanjie) Generally, enterprises are always using the application of trademarks to protect their brands, but because of the strict trademark review and long review periods, sometimes enterprises could not obtain the approval of trademark registration. Even so, with regard to their famous goods, enterprises could rely on the Anti-Unfair Competition Law to protect their rights and interests. In today’s post, we will introduce and share a typical case with readers.
Introduction to the Case:
Appellant (Plaintiff at first instance): Beijing Qunar.com Information Technology Co. Ltd (the “Qunar”)
Respondent (defendant at first instance): Guangzhou Quna Information Technology Co. Ltd (the “Quna Company”)
Court of first instance: Guangzhou Intermediate People’s Court No.: (2011)穗中法民三初字第217号
Court of second instance: Guangdong Province Higher People’s Court No.: (2013)粤高法民三终字第565号
On April 25, 2011, the Qunar, a famous Chinese travel platform of qunar.com (Qunar writes “去哪儿”and means “where to go” in Mandarin Chinese), discovered that, the Quna Company used the same Chinese characters of “Quna” (Quna writes “去哪” and also means “where to go” in Chinese) in its enterprise name and also operated a website named “quna.com”, similar type of business to that of Qunar.com. The Qunar claimed that the Quna Company shall constitute unfair competition and then brought the Quna Company to the court, demanding that:
1. The Quna Company shall immediately cease to use the characters of “去哪”, “去哪儿”, “去哪网” and “quna.com”, and shall stop using the identical with or similar to the website design patterns of the “qunar.com” immediately. Moreover, the Quna Company shall also stop using the enterprise name which contains the characters “去哪”.
2. The Quna Company shall cancel the domain name www.quna.com.
3. The Quna Company shall be liable for the compensation of RMB 3 million.
The court of first instance heard the case and made a judgment in favor of the Qunar, but adjusted the amount of compensation to RMB 0.35 million. Dissatisfied with the judgment back by the first instance, the Quna Company appealed. Guangdong Province Higher People’s Court basically affirmed the original judgment but held that the domain name “quna.com” was firstly registered on June 6, 2003, prior to the date of registration and operation of the domain name “qunar.com” on May 9, 2005. Thus the registration date of “qunar.com” was about two years later than that of “quna.com”, so that the registration of “quna.com” was entirely justified. Based on those, Guangdong Province Higher People’s Court amend the judgment that the Quna Company shall be entitled to use the domain name “quna.com”.
Lawyer’s Comment:
- The court is entitled to judge the use of others’ unique name of famous products to change its enterprise name.
Paragraph 3, Article 2 and Item 2, Article 5 of the Anti-unfair Competition Lawstipulates that, business operators shall not use, without authorization, the names unique to well-known goods, or the name similar to those of well-known goods so that their goods are confused with the well-known goods of others, causing buyers to mistake them for the well-known goods of others. In this case, both the Qunar and the Quna Company are ones that provided online travel services, so that the Quna Company shall not have unfamiliar with the service name of “去哪儿” owned by the Qunar. Therefore, the Quna Company’s use of a similar service name to that of the Qunar would inevitably lead to consumers make confusion between the Qunar and the Quna Company, thus constituting unfair competition.
Pursuant to Article 4 of the Provisions of the People’s Supreme Court on Several Issues Concerning the Trial of Civil Disputes Cases Involving Confliction between Registered Trademarks or Enterprise Names with Prior Rights, in the event an accused enterprise name infringes the exclusive right to use a registered trademark or constitutes unfair competition, the people’s courts may, based on the claims of the plaintiff and the circumstances of the case, determine that the defendant shall bear civil liability such as stopping and standardizing the use of the name. Therefore, the court determined directly that the defendant shall change its enterprise name.
- The constitutive requirements of domain name infringement
Pursuant to Article 4 of the Interpretation of the Supreme People’s Court on Application of Laws in the Trial of Civil Disputes Over Domain Names of Computer Network, the people’s court that hears a domain name case shall determine the defendant’s action of registration or use of the domain names to be infringement or unfair competition in the following conditions:(i) the civil rights and interests the plaintiff claimed are legitimate; (ii) the defendant’s domain names or the main parts of the domain names are copies, imitations, translations, or transliterations of the plaintiff’s, or are the same with or similar enough to the plaintiff’s registered trademarks or domain names, causing consumers to make confusion; (iii) the defendant has neither rights or interests on the domain names or their main parts, nor the justified ground for registration or use; (iv) the defendant’s registration or use has malice. Therefore, the domain name is also under the protection of the Anti unfair Competition Law.
However, in this case, the Quna Company firstly registered the domain name “quna.com” in 2003, prior to the registration of the domain name “qunar.com”, so that the registration of the domain name “quna.com” was justified. One party could not deprive the operation space of another party’s prior existing rights. Therefore, the court of second instance rejected the claim of the plaintiff over the domain name.
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