Tag Archives: trademark infringement

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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ESTsoft

(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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Uber’s China Imitator Didi Taxi Meets Trademark Problems

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嘀嘀打车

(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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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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castel

(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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GAP Defeated a Trademark Squatting in China After 20 Years

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(By You Yunting) It is well known that GAP is a famous brand in clothing. However, in China, someone attempted to register “GAP” under Class 9 for eyewear products as a trademark. GAP has been defeating similar trademark squatting for over 20 years.

Introduction to the Case:

Applicant of a retrial (Plaintiff in the first instance and Appellant the in second instance): GAP (ITM) INC.

Respondent (Defendant in the first instance and Appellee in the second instance): Trademark Review and Adjudication Board (the “TRAB”)

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Why China Court Decision the Use of Registered Trademark to Non-infringement?

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(By Luo Yanjie) Abstract:A trademark shall be distinctive and a rational use of the characters in a trademark does not constitute infringement. The 2013 version of the Trademark law clearly stipulates that where an identical or similar trademark has been used in connection with the same goods or similar goods by others before the registrant’s application, the exclusive right holder of said registered trademark shall have no right to prohibit other people from using the aforesaid trademark from continuous use of such trademark within the original scope, but may request its users to add proper marks for distinction.

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Why Couldn’t the “CASTEL” Trademark Prevent AnotherFrom Registering As Enterprise Name?

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(By Luo Yanjie ) Abstract: Generally, the trademark-right and the right of an enterprise-name are independent of each other. However, these rights, which also act as an enterprise-business-mark-right and are comprised of an intellectual property right, are likely to be so similar in their nature and characteristics that they may objectively cause disputes. To reach a judgment on whether there has been a breach of the principle of good faith and recognized commercial-morality as regulated in the anti-unfair Competition Law, the court would make a judgment based on the particular circumstances of a case.

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Why could an Unregistered Trademark Obtain Protection in Beijing Higher People’s Court?

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(By Luo Yanjie) Abstract: To judge whether two goods are similar, generally is ruled upon the basis of the Chinese Goods and Services Classification and then on the courts’ interpretation of different cases and facts. The trademark application shall not be a means to register a mark that is already in use by another party and enjoys substantial influence, and shall also not infringe upon another party’s prior existing rights.

The statement “Goods and service are similar” refers to the goods and services that are associated with each other and thus are likely to produce confusion among the relevant public (our previous post, Why the “NEXT” Trademark could Receive Cross-class Protection in China had introduced similar problems), in which the actual situations conflict with the Chinese Goods and Services Classification of the Chinese Trademark Office (the “CTMO”). In today’s post, we would like to introduce a typical case.

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Shall Silk Street Undertake Compensation Liability to LOUIS VUITTON MALLETIER for Trademark Infringement?

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silk street

(By Luo Yanjie) Abstract:  Market-managers should fulfill their duty to exercise reasonable care to cease trademark infringement. “Intentionally facilitating an infringement by another person or party of an exclusive right to use a registered trademark including through acts such as storage, transportation, postage, concealment and similar” shall be deemed as an infringement of the exclusive right to use a registered trademark.

Our website once introduced a post that the Name on the American Notorious List Could Also be the Well-known Trademark in China. Actually, Silk Street is not a company that sells fake goods, buta market consisting of many small shops. It is undeniable that the market of Silk Street was once listed alongside the Pirate Bay in the notorious market by USTR because it has sold too many fake products. Considering there are many fake products in Silk Street, the market manager shall be found liable. In today’s post, we would like to introduce and discuss a case where the market manager was found liable for its shops’ selling fake goods.

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Why VICTORIA’S SECRET could not Prevent Selling a Parallel Imported Genuine Product Online in China?

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(By You Yunting) VICTORIA’S SECRET is the largest American retailer of lingerie whose products does not sell on the Internet in China. Considering the fact that a Shanghai-based company sold its products on the Internet in China and confessed that it was the unique designated general distributor in China, VICTORIA’S SECRET brought the Shanghai-based company to the court on the grounds of trademark infringement and unfair competition.

Introduction to the Case:

Plaintiff: VICTORIA”S SECRET STORES BRAND MANAGEMENT, INC．(the “VICTORIA’S SECRET”)

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