Introduction
In China, establishing a “well-known trademark” is the ultimate honor for a corporate brand. Such prestige may increase the mark’s effectiveness and create broader protection. Therefore, many Chinese companies and well-known international brands work to accomplish this honorable identification.
Presently, the determination of well-known trademarks in China can be made by: the Trademark Office of the State Administration for Industry & Commerce, the Trademark Adjudication & Review Board, or the people’s courts. Among these three bodies, determination of well-known trademarks through the people’s court, the judicial means of determination, is the fastest. Since various levels of the Court can make this determination, this organ receives the most extensive attention.
To mandate the judicial determination system, the Supreme People’s Court recently issued on April 22, 2009
Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law to the Trial of Cases of Civil Disputes over the Protection of Well-known Trademarks (hereinafter “
Interpretation”).
This article provides an overview of well-known trademarks, analyzes the effects of the
Interpretation as applied to the judicial process of well-known trademark determination, and concludes with suggestions for companies interested in achieving the honorable determination of well-known trademark status.
Table of Contents
I. An Overview of the Judicial Process for Determining Well-Known Trademarks
A. Means and organs for determining well-known trademarks
B. Legal basis for determining well-known trademarks
C. Factors influencing the judicial determination of well-known trademarks
D. Trends related to the judicial determination of well-known trademarks
II. The Recent Interpretation
A. Explanation of Content in the
Interpretation
B. Influences for and main changes to the provisions
1. Necessity of Well-Known Trademark Determination
a. Current Situation
b. Changes
c. Influences for the change
d. The presumption for reasons of the changes
2. Evidence for Well-Known Marks
a. Current Situation
b. Changes
c. Influences of the change
d. The presumption for reasons of the changes
3. Timing of filing for a cancellation
a. Current Situation
b. Changes
c. Influences of the change
d. The presumption for reasons of the changes
4. The unregistered trademarks which have the following circumstances will not be determined as well-known trademarks
a. Current Situation
b. Changes
c. Influences of the change
d. The presumption for reasons of the changes
5. The status of the determination of well-known trademark in the written judgment
a. Current Situation
b. Changes
c. Influences of the change
d. The presumption for reasons of the changes
III. Considerations for Establishing Well-Known Trademarks
A. Apply early, Use early
B. Pay Attention to Maintenance and Collation of Materials
C. Unified Management of the Trademark
D. Request the Determination of Well-Known Trademark in Properly
E. Format of Complaint
F. Classification of Requested Well-Known Trademark
G. Relationship between Chinese and English Well-Known Trademark Requests
I. An Overview of the Judicial Process for Determining Well-Known Trademarks
A.
The means and organs for determining well-known trademarks in China
Presently, there are three organs that determine the status of trademarks in China. The three organs are respectively: the Trademark Office of State Administration for Industry & Commerce (“Trademark Office”), Trademark Adjudication & Review Board and the People’s Court. The legal basis for this procedure as applied to each organ is when one party claims that an existing trademark is in violation of Article 13 of Trademark Law. There are other bases that are applicable to each organ that will be mentioned in their respective sections. Each organ has a distinct procedure that will be dissected in the following paragraphs.
The Trademark Office can determine the status of trademarks through a trademark opposition procedure. Based on the belief that an existing trademark is in violation of Article 13 of Trademark Law, a party may file an opposition before the Trademark Office and request a determination that their mark is a well-known trademark. This determination rejects the trademark application of the other party.
The Trademark Adjudication and Review Board can also determine well-known trademarks through a trademark adjudication procedure. Also initiated by a potential violation of Article 13 of the Trademark Law, the opposing party may request a determination by the Trademark Review and Adjudication Board that their mark is a well-known trademark that cancels the registration of the other party’s trademark.
Finally, a party that holds that an existing trademark is in violation of Article 13 of the Trademark Law can file a written request before the local industrial commercial authority to prohibit the violating party’s use of the trademark. This written request should include relevant materials that can prove the trademark is well-known. Prior to mailing the relevant materials to the Trademark Office, the materials should be preliminarily examined and signed with opinions by the industrial and commercial authority of provincial level. The Trademark Office then determines whether the trademark should be considered a well-known trademark.
B.
Legal basis and principles for determining well-known trademarks
Judicial determination of well-known trademarks was first expressly stipulated in
the Explanations for a Certain Number of Cases involving the Applicable law for Internet Copyright Disputes by the Supreme Court promulgated on June 2001. Article 6 also specifies that for cases regarding dispute over domain name of computer network, the People‘s court can determine whether the registered trademark is a well-known trademark. This determination must be in accordance with the facts of the case, as well as the request filed by opposing involved party.
To be clear, the judicial interpretation cited above only allows the people’s court to determine well-known trademarks in domain name dispute cases. The scope of the People’s Court’s authority was later expanded under
The Interpretations on the Explanations for a Certain Number of Cases involving the Applicable Law for Civil Trademark Disputes by the Supreme People’s Court promulgated on October, 2002 further clarified that well-known trademarks can be judicially determined in trademark dispute cases.
Currently, Article 22 and Article 14 govern the breadth of judicial determination of well-known trademarks. Under Article 22, the determination by the people’s court must be in accordance with the concrete case and request filed by the involved party. The examination procedure only occurs if the involved party is in opposition of the use of trademark. If there is an opposition, the People’s Court shall examine the use according to 14
th article of the Trademark Law.
Throughout these judicial processes, two principles are typically applied when determining whether a trademark is well-known: 1) Passive Protection Principle, and 2) Case by Case Determination. Each of these principles will be briefly discussed below.
Following the Passive Protection Principle, judicial authority cannot independently determine well-known trademarks. The Court shall make the determination based both on the request filed by the involved party as well as concrete facts from the individual cases.
Under the Case by Case Determination Principle, the well-known trademarks determined by the court only effect the present case and will not necessarily influence future cases. Due to this principle, it is imperative that an involved party present all the relevant material because the court does not rely on precedent.
C.
Factors influencing judicial determinations of well-known trademarks
Judicial determinations of well-known trademarks began in 2001. Between 2001 and 2003, there were only ten judicial determination cases. The number increased to 25 in 2004, and surged to 67 in 2005. In 2006, there were 94 determination cases decided, despite the thousands of determination applications. The advantages of judicial determinations over administrative determinations are often cited as the reason for the increase in popularity. The advantages to be discussed include: 1) shorter processing time, and 2) multiple courts available to carry-out the process. Yet, there are also disadvantages discussed, including: 1) differing standards, and 2) false cases used to establish a determination for the opposing party.
Beginning with the advantages, first, the shortened processing time for judicial determinations as opposed to administrative determinations is highly sought after. In practice, due to the excess of trademark opposition and adjudication cases, the well-known trademark determination by the Trademark Office and the Trademark Review and Adjudication Board will last more than 2 years, while according to
Civil Procedure Law, a civil case should usually be judged within 6 months. While some judgments may exceed 6 months, very few parties experience a judgment period that exceeds 1 year.
Second, the Trademark Office and the Trademark Review and Adjudication Board are exclusive state organs, whereas 300 Intermediate People’s Courts exist and can all be main bodies of well-known trademark determination. The number of facilities through which a party can have their case heard creates a level of convenience that does not exist with the options.
Due to the existence of the above advantages, there are instances of eager companies that try to take advantage of the judicial process for purposes of obtaining a well-known determination of their trademark. Thus, the judicial determination process also contains weak points and disadvantages.
The first disadvantage is that at present, the determination standard is mainly based on Article 14 of the Trademark Law, yet there is no detailed judicial interpretation. Therefore, the determination can be loose or strict in different local courts without a uniform standard.
Second, companies intentionally file fraudulent lawsuits or make the so-called “Trademark Infringement Cases” against false trademarks to obtain a well-known mark determination. For example, in the case of Shantou Fine Chemical Industry Corporation, the trademark “康王kanwang” was determined a well-known trademark, but through the rehearing process the case was found to be a “fake” well-known trademark determination case.
D.
Trends Related to the Judicial Determination of Well-Known Trademarks
Due to the existence of the above problems, the Supreme Court intensified its supervision of well-known trademark determination. In November, 2006, the Supreme Court issued a
notification regarding the establishment of well-known trademark determination docketing system with the purpose of intensifying the centralized guidance and supervision of concrete cases. After issuing the notification, there were seventeen high courts that sent legal documents regarding the pending well-known trademark determination cases of the first and second instances to the Supreme People’s Court for record. On November 11, 2007, the Supreme Court issued
the Opinions on Intensifying Judgment on Intellectual Poverty to Provide Legal Basis for Establishing Innovation-Oriented Country, which focuses on perfecting the well-known trademark docketing system. This requires the people’s court of various levels to discreetly determine well-known trademarks. Cases which exceed the determination scope or which do not meet determination requirements or infringement accusations cannot stand. These cases should not be determined as well-known trademarks.
The People’s Supreme Court further requires the high courts of various levels to take responsibility and increase supervision and guidance over the cases. The high courts must strictly correct inappropriate practices and avoid all errors. For cases that purposely attempt to make fraudulent disputes for purposes of obtaining well-known trademark determination, the party should be punished in accordance with Article 102 of the
civil procedure law. The original judgment and the well-known trademark determination must then be cancelled.
The Supreme People’s Court also conducted research regarding judicial protection of well-known trademarks. In the wake of that research, The Supreme Court promulgated
the Interpretation on Application of Law Regarding Judging Protection of Well-known trademarks in Civil Dispute Cases on April, 2009. This interpretation further perfects the application standard in well-known trademark determination.
Additionally, other courts unveiled fresh regulations. One recent example is that the authoritative high court of Zhejiang Province promulgated an independent notification regarding well-known trademark determination. According to the notification, only the intermediate courts of Hangzhou and Ningbo in Zhejiang Province can accept cases regarding the well-known trademark determination.
Taking into consideration the above progress, it seems that the judicial determination of well-known trademarks standards will continue to become more strictly enforced.
II.
The Interpretation on Well-Known Trademark Determinations
Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law to the Trial of Cases of Civil Disputes over the Protection of Well-known Trademarks was promulgated on April 23, 2009 and took effect on May 1
st , 2009. In the following sections, The
Interpretation will be explained and the influences for the incorporated changes will be described.
A.
Explanation of Content in the Interpretation
The
Interpretation has 14 Articles. Except the 14
th Article, which explains the effect of the
Interpretation, the other Articles are explanations for determination of well-known trademarks. Each Article will be briefly discussed below.
The Article 1 is the definition of well-known trademarks, that is, the trademarks that are well-known in the territory of People’s Republic of China.
Article 2 and 3 clarify which cases constitute a determination of well-known trademark. These cases are respectively: a) dispute cases involving unregistered trademarks in identical or similar designated goods, b) dispute cases involving trademarks of dissimilar designated goods, and c) dispute cases involving conflicts between trademarks and trade names. It should be noted that in domain dispute cases, well-known trademarks should not be determined.
Article 4 explains the standard of well-known trademark determination, which is based on Article 14 of the Trademark Law.
Article 5 suggests the evidence needed for determining well-known trademarks. The evidence cited includes: market share, sales district, profit and tax; the consecutive use period（including consecutive use prior to the registration; modes of promotion, duration, extent, input capital, territorial range; records of being protected as well-known trademarks; market reputation shared by the trademark; ranking in the industry, market survey research, market evaluation; whether it was determined as a well-known trademark, etc.
Articles 6, 7, and 8 further explain the burden of proof for determining well-known trademarks. The burden falls onto the party who claims its trademark is a well-known trademark.
Article 9 is the interpretation of the phrase “likely to cause confusion,” from paragraph 1 and the phrase “mislead the public” from paragraph 2 of Article 13 of the Trademark Law.
Article 10 articulates the factors that should be considered by the people’s courts involving dispute cases with trademarks of dissimilar designated goods or trade names. The factors are respectively: distinctiveness of the well-known trademark, the extent of awareness of the well-known trademark by the relevant public of the disputed trademark or trademark name and relevance of the designated goods of the well-known trademark and the disputed trademark.
Article 11 outlines two scenarios when Article 13 doe not apply. The instance is trademarks whose registered time exceeded the time in which cancellation is allowed to be filed under the second paragraph of the Article 41 of the Trademark Law. Another instance is if the plaintiff’s trademark was not famous on the application date of the accused trademark. Under those situations, the People’s Court will not support the plaintiff’s claim.
Article 12 clarifies the situation in which unregistered trademarks cannot be determined well-known trademarks, under Articles10, 1 and 12 of the Trademark Law.
Article 13 outlines the People’s Court’s position for determining well-known trademarks. The determination should only be regarded as case fact and judgment basis, but that is not written into the text of the judgment. If the case is settled by mediation, the mediation agreement will not determine the fact of well-known trademark.
B.
Influences for and Main Changes to the Interpretation
In the
Interpretation, parts of the content have been implemented in judicial practice. They are legalized into this interpretation. The other parts are different from judicial practice. An explanation of this distinction follows.
1.
Necessity of Well-known trademark Determination
Article 2 establishes that in the civil dispute cases, if a party properly provides a factual basis for the well-known trademark, the people’s court shall make a determination “with the concrete case.” Article 2 states:
1. Litigation filed based on violation of the 13
th article of the Trademark Law;
2. Trademark infringement litigation or unfair competition litigation filed based on the claim that involved trade name is identical or similar to the well-known trademark;
3. Defense litigation or counter-claim litigation which corresponds with the 6
th article of the interpretation.
Article 3 sets out civil dispute cases whereby the people’s court will not determine the involved trademark as well-known trademark:
1. The establishment of the accused trademark infringement or unfair competition acts is not based on well-known trademark facts.
2. The accused trademark infringement or unfair competition acts are not established due to lack of other element required by law.
If the plaintiff claims that the accused party’s registered or used domain name is similar or identical to its registered trademark and operates e-commerce through the domain name, the plaintiff must show that the public will be sufficiently misled. If the plaintiff files infringement litigation, the case should be judged according to the first paragraph of the preceding article.
a. The current situation
Prior to the
Interpretation, there was no clear regulation regarding when well-known trademarks can be determined, and the necessity of determining such well-known trademarks. While different courts have different standards, prior to the
Interpretation, 4 types of cases were regarded as able to accomplish a determination of well-known trademarks. These cases include: 1) cross classes protection of well-known trademarks, 2) requests to cease infringing of unregistered well-known trademarks, 3) domain disputes, and 4) trade name infringement cases.
From the above regulations of the
Interpretation, cross classes protection, cease infringing acts are still cases which well-known trademarks can be determined. For trade name infringements, there are a number of cases in judicial practice; the
Interpretation further legalizes the practices. The
Interpretation regarding the domain name disputes is the greatest change.
As stated above, Article 6 of
A Certain Number of Cases involving the Applicable law for Internet Copyright Disputes by the Supreme Court clearly stipulated that for cases regarding disputes over domain names of computer networks, the people’s court can determine whether the registered trademark is a well-known trademark in accordance with the concrete case and request filed by the involved party.
The Vice President of the Supreme People’s Court, Cao Jianming, made the following address in the work symposium regarding the national intellectual property judgment of January of 2007:
according to the trademark law and the relevant judicial interpretation, court can only determine well-known trademarks in cases such as: cross classes protection of well-known trademarks, request to cease infringing unregistered well-known trademarks, trademark infringing concerning conflicts between trade name and well-known trademarks.
Due to the consensus of courts and clear judicial interpretation, domain dispute cases were the main types of cases for well-known trademark determination. 4 out of 10 cases concerning well-known trademark determination in 2005 published by the Supreme People’s Court are of this type.
For example, in
Rolex v. Beijing Guowang Information Co., Ltd. the accused party registered the domain name “rolex.com.cn” and did not use the domain name. Rolex argued that the accused party registered the trade name and trademark in bad faith and that the registration infringes its right and constitutes unfair competition. The Beijing Second Intermediate People’s Court held that the trademark Rolex of the Rolex Company and its high quality products enjoy high popularity in both China and around the world. Therefore the marks can be regarded as well-known trademarks. The Court went on to say that bad faith of Guowang is very obvious and violates the basic principle of honesty and credibility.
However, after 2007, the court began rejecting the request of a well-known trademark determination on the ground of “no necessity.” The case
Hangzhou Yu Ren Paper Co., Ltd.
v. Wang Chengxian illustrates this principle in the context of a trademark and domain name dispute. The plaintiff, Yu Ren Paper Co., Ltd, enjoyed the exclusive right of the registered trademark “diaoyu.” At the end of August, 2007, the accused party Wang Chengxian registered the domain name www. diaoyupuke.net and informed the plaintiff by telephone and fax that if the plaintiff wanted to use the domain name, it would have to make an assignment by paying fees. The two parties did not make an agreement. The plaintiff filed a lawsuit before the court.
After examination, the court held that the plaintiff enjoys the rights obtained through registration. Since the accused party registered the domain name
www.diaoyupuke.net without authorization of the plaintiff and the domain name is similar to the trademark it is likely to cause confusion. The use of the domain name constituted an infringement of the registration right. In response to plaintiff’s request to determine their trademark as a well-known trademark, the court held that whether the purpose of well-known trademark determination can exceed the regular trademark right protection depends on if the usual trademark protection cannot stop infringement. If this condition is met, the court shall determine whether a trademark is a well-known trademark. Due to the fact that this condition cannot be met in this case, there is no need to determine the well-known trademark in this case.
b. Changes
Article 2 of the
Interpretation does not cover domain name disputes as cases that can determine well-known trademarks. The second paragraph of Article 3 further points out that if the plaintiff files litigation on the ground that the accused party used/s and registered the trademark for the domain name which is identical or similar to its trademark to carry out e-commerce, determination of well-known trademark is not necessary. This may sound a little confusing. But due to the tendency of strict control over judicial determination of well-known trademarks, the possibility of not determining is high.
c.
Influences of the change
As stated above, domain name disputes were once the main cases for well-known trademark determination. However, the courts began to examine the necessity of determination more strictly. It is likely that in the wake of the
Interpretation, the courts will get even stricter. We project that well-known trademarks will not be determined at all in future domain name dispute cases.
d.
The presumption for reasons of the changes
According to the necessity principle of judicial determination on well-known trademarks, well-known trademarks are only necessary to be determined when they cannot be protected as a regular trademark. In the increasing arbitration cases, though the involved trademarks are not determined as well-known trademarks, the domain names which are similar or identical to the trademark will be assigned to the trademark registrant. That is to say, in domain name dispute cases, the regulations do not contemplate whether the trademark is well-known.
2. Evidence for well-known trademarks
Article 5 of the
Interpretation states that if the party claims that its trademark is a well-known trademark, the following evidence should be provided to support that claim:
(1) The market share, sales district, profit and tax of the goods where the trademark is used;
(2) The duration of use of the trademark;
(3) The modes of publication and promotion of the trademark, its duration, extent, input capital and geological range;
(4) The records of the mark being protected as a well-known trademark;
(5) The fame the trademark enjoys in the market;
(6) Evidence which can prove its well-knowness.
a. Current situation
When determining if a trademark is well-known, there is no clear stipulation on whether examining the use prior to the registration is required. Usually, the judgment of the court writes as follows: “the trademark has achieved its well-knowness through use and publication since certain years from registration.” For example, the judgment of the case
Geely Group v. Kunming Yajieli Trading Co., Ltd. on trademark dispute issues states: “The plaintiff was established in May 13
th, 1996. . . Since registration of its trademark Ji Li, except use of the mark by itself, the Geely group also licenses Zhejiang Geely Holding Limited to use the mark, etc.”
Therefore, the court usually only considers the use of the mark after registration. The involved parties seldom mention use prior to registration and the court does not give much weight to such information.
b.
Changes
The determination standard is still the Article 14 of the Trademark Law. Therefore, there is no big change at all. But, the above mentioned the second paragraph of Article 5 extends the use and scope of the trademark. Factors like duration, range, modes are taken into consideration.
c.
Influences of the changes
For the trademark registrant, the use prior to the registration can also be recognized. If the trademark is consecutively used prior to the registration, more evidence can be submitted which will facilitate proving the degree to which the mark is well-known.
d.
The presumed reasons for the changes
The practices prior to the
Interpretation did not support this tendency. Presumably, that it is possibly because of the lengthy registration time usually lasts 2 years. Yet, if a company does not register a trademark before launching a product, but instead designs a trademark simultaneously, the trademark may be used for some years before its registration. At present, the practices of using pending application trademarks are becoming increasingly more common. Therefore, it is fair and justified to take the use prior to registration of a trademark into consideration.
3. Timing for filing a cancellation
Under Article 11, a party violates Article 13 of the Trademark Law, when a party reproduces, imitates or translates the plaintiff’s well-known trademark, because those are the registered user’s trademark rights. If the party is found to violate a user of the trademark, the people’s court shall prohibit the use of the trademark by the accused party, both in accordance with the law and the request of the plaintiff. It should be noted that if the registered trademark of the accused party falls under the following situations, the people’s court will not support the plaintiff’s request: 1) trademarks have exceeded the cancellation time stipulated by Article 41 of Trademark Law, or 2)The plaintiff’s trademark was not famous at the time of the accused party’s registration application.
a.
Current situation
According to the second paragraph of Article 1 of the
Several Issues Concerning the Judging on Registered Trademarks, Conflicts between the Trade Name and Prior Rights Regarding the Civil Dispute Cases, “the plaintiff files litigation on the ground that the other party use and register the trademark which constitute identical or similar trademarks with its prior registered trademark, the people’s court should notify the plaintiff to file a request before the administrative authority in accordance with the 3
rd paragraph of Article 111 of Civil Procedure Law.” But, if the plaintiff files litigation on the grounds that the party use the registered trademark by exceeding its approved designated scope or changing the distinctive features or using the mark be dispatching, combing which makes the mark identical or similar to its registered trademark, the people’s court should accept the case.
In addition, the second paragraph of Article 41 stipulates that for registered trademarks that violate Articles: 13, 15, 16 and 31 articles of the Trademark Law, the trademarks can be cancelled within 5 years. This 5 year limit also applies to trademarks registered in bad faith. Since most of the violation cases are due to bad faith, the article can be understood as: “For trademarks which violate the 13
th article of the Trademark Law, even if it has been registered for 5 years, it can also be cancelled.
b.
Changes
The
Interpretation clarifies that the people’s court should accept dispute cases in which the accused party violates Article 13 of the Trademark Law. Next, the
Interpretation clarifies that if registration of the cited mark exceeds 5 years, the plaintiff’s claim will not be supported by the court.
c.
Influence of the change
The change has both favorable and unfavorable consequences for the proprietor of well-known trademark. The favorable aspect is that the proprietor of well-known trademark will not be restrained by the judicial interpretation promulgated in February, 2008. With regard to the registered trademark that is in violation of Article 13 of Trademark Law, without requesting the Trademark Review and Adjudication Board to make an adjudication to cancel such a registered trademark first, the proprietor can institute the infringement proceedings directly without rejection by the court.
On the other hand, the unfavorable aspect is that if exceeding five-year time limit of canceling the registered trademark, the proprietor cannot institute the infringement proceedings with the court. If the proprietor intends to cease the infringement, the registered trade must be cancelled first.
d.
The presumed reasons for the changes
In January 2009, the seminar “How Intellectual Property Trials Should Respond to the Impact Brought by Financial Crisis on Entity Economy” was held. Xiangjun KONG, Deputy Chief Judge of the Civil Tribunal of the Supreme People’s Court pointed out in his speech that: “In the cases of dispute over the approval and ownership of trademark, the courts shall attach great importance to the promotion of the formation of domestic self-owned brand, grasp the legal nature of exclusive right and identification right of trademark correctly, determine the strength and scope of protection according to the degree of distinctiveness and recognition of the registered trademark. With regard to the intellectual property disputes involved in the industries of ORIGINAL EQUIPMENT MANUFACTURE (OEM) in the regions with high degree of dependence on foreign trade, the courts shall not only pay attention to the protection of intellectual property, but also promote the upgrade and development of relevant industries.
Additionally, KONG stated “during the trial on the cases of dispute over ownership and grant of trademark, the trademarks which have been registered and used for a long time, enjoy high reputation and form their own relevant public group, shall not be cancelled indiscreetly.”
Based on the speech, the intentions of the Supreme People’s Court can be summarized as the following four aspects: 1) prompting the prior right owner to exercise the right early and actively, 2) preventing others from using the trademark dispute system to obtain interests with unfair means, 3) safeguarding the established stable market order, and 4) articulating the circumstances in which the unregistered trademark shall not be determined as well-known trademark.
4. Restrictions on the determination of unregistered marks as well-known
Article 12: Where the unregistered trademark requested for protection by the parties has the circumstances of not being used or registered as registered trademark stipulated by Article 10, 11 and 12 of Trademark Law, the people’ s court shall not support the claims.
a. Current situation
There are few disputes over the determination of well-known trademark by the people’s court in the cases of an unregistered trademark for infringement according to the stipulation of Article 13(1) of the Trademark Law. The reason is that before the determination of well-known registered trademark, it is not only required to prove the high recognition of the unregistered trademark, but also to determine this unregistered trademark is in conformity with the constitutive requirements stipulated by the Trademark Law.
There are three cases that illustrate this scenario: the first one is the case of dispute over trademark infringement and unfair competition between Inner Mongonia
Mengniu Dairy (group) Co., Ltd. and Jianjun DONG, Henan Anyang Snowwhite Dairy Co., Ltd., in which the first unregistered well-known trademark was determined by the court through the judicial process of civil procedure. The second one is the case of Hongkong “Ronghua” mooncake. The court in this case held the trademark “Ronghua” (in Chinese) as the first “Chinese well-known trademark” determined by mainland judicial authority. In this case, the court of second instance determined that “Ronghua mooncake” is a distintive name of a well-known commodity of a Hongkong Ronghua Company, and cancelled the determination of unregistered well-known trademark. The third one is the Inner Mongolia Xiao Wei Yang case.
Greater details of the “Sour Sour Yogurt” case may help to further illustrate this issue. The Mengniu Company successively introduced a series of dairy drinks named after “Sour Sour Yogurt” beginning in 2000. In December, 2005, the Mengniu Company found that defendant 1 Jianjun DONG was distributing the “Sour Sour Yoguar” lactobacillus beverage manufactured by defendant 2 Henan Snowwhite Company. Not only is the “Sour Sour Yoguar” brand the same as that of Mengniu Company, but the package and decoration of their beverage is similar to the distinctive package and decoration as well.
After accepting this case, Huhhot Intermediate People’s Court had a strict examination on the degree of public recognition of “Sour Sour Yogurt” (in Chinese) trademark as well as the duration in which this trademark has been in use. The court determined that although its application for trademark registration had not been approved by the State Administration of Industry and Commerce Trademark Office, it had been in conformity with the determination requirements stipulated by Article 14 of Trademark Law and should therefore be determined as well-known trademark. Snowwhite Dairy Company filed an appeal. The court of second instance dismissed the appeal of Snowwhite Dairy Company and upheld the original decision. It should be noted that the written judgment states that the determination of Mengniu “Sour Sour Yogurt”(in Chinese) mark as a well-known trademark is “only applicable in this case.” Additionally, the written judgment of second instance also states that, the determination of Mengniu “Sour Sour Yogurt”(in Chinese) mark as a well-known trademark has no binding force of law upon other enterprises. Also, the written judgment states that “the recognition of a trademark is a kind of objective state, but this objective state will change as time goes on, which belongs to a dynamic process. Thus, the well-known trademark determined judicially is only effective for the case in dispute, not applicable for other market subjects.”
b.
Changes
As mentioned above, in the cases of determining unregistered trademark as well-known trademarks, the people’s court shall first determine if the unregistered trademark is in conformity with the constitutive requirements of trademark stipulated by the Trademark Law. Theoretically speaking, there is no great change in the new judicial interpretation.
However, the wording “Sour Sour Yogurt” is currently under suspicion of only indicating the main ingredients and features and lacking distinctive character. In addition to the trademark applicant Mengniu, several other Chinese top dairy enterprises, such as Yili, Bright, etc. have also used the trademark “Sour Sour Yogurt”(in Chinese) on the commodity of lactobacillus beverage. In fact, although the application for registration of trademark “Sour Sour Yogurt”(in Chinese) filed by Mengniu in December, 2005 has been preliminarily approved after the examination, it is currently in the opposition procedure. That is to say, the trademark “Sour Sour Yogurt” (in Chinese) is likely to be refused registration because it may be ascertained to contain the circumstance stipulated by Article 11 of the Trademark Law.
According to the explicit explanation of judicial interpretation, the unregistered well-known trademark shall not be determined if it contains the grounds for refusal of registration or usage as a trademark stipulated by Article 10, Article 11 and Article 12 of the Trademark Law.
c.
Influence of the change
As the
Interpretation is further understood, it is foreseeable that the examination on the determination of unregistered trademarks as well-known trademark will be stricter. If the above-mentioned “Sour Sour Yogurt” case were heard today, it would probably not decided the same way. Thus, with respect to the trademark protection, there are slim hopes for the trademark proprietor that the unregistered trademark may be determined as a well-known trademark. The safest way is to apply for and obtain trademark registration as early as possible.
d.
The presume reasons for the changes
During the trademark registration process of the “Sour Sour Yogurt” case, it seems that the trademark could not be approved and registered, however, it was judicially determined as a well-known trademark. Unfairly, this case indicates that a mark that should not obtain the exclusive right to use the registered trademark, can instead obtain wider protection than the exclusive right to use the registered trademark through the use of the system of judicial determination of well-known trademark. Although there is no new content in this article of the judicial interpretation, it explicitly prohibits the circumstance of obtaining the trademark through the determination of well-known trademark.
5. The status of the determination of well-known trademark in the context of the written judgment
In civil disputes involving the protection of well-known trademarks, the determinations by the people’s court are used as case fact and the grounds for judgment, without being written in the main text of the judgment. If the case is concluded through reconciliation, the fact that the trademark is well-known shall not be ascertained in the reconciliation document.
a.
Current situation
At the initial stage of the judicial determination of a well-known trademark, the parties concerned always state their request as a claim in the complaint. When the court is deciding the case, the determination of the well-known trademark is taken as the first item of the main text of the written judgment.
In the case of Greely Holding Group Co., and Kunming Yajieli Trading Co., Ltd., the plaintiff’s made claims as follows: “1. Defendant must cease the act of trademark infringement; 2. Defendant must compensate plaintiff for economic losses of RMB100,000; 3. Defendant must make a public apology and eliminate negative effects in the nationally circulated newspapers; 4. Request the court to determine the trademark “Geely”(in Chinese) as a well-known trademark; and 5. Defendant must burden all the litigation fees.”
The court’s main text of the judgment holds:
1. The trademark “Geely” (in Chinese) of Geely Holding Group Co.,Ltd. as the well-known trademark;
2. Defendant Kunming Yajieli Trading Co., Ltd. shall immediately cease the infringement on the exclusive right to use the registered trademark “Geely” owned by plaintiff Geely Holding Group Co.,Ltd.;
3. Defendant Kunming Yajieli Trading Co., Ltd. shall compensate plaintiff Geely Holding Group Co.,Ltd. for RMB 50,000 within 10 days since the decision comes into effect;
4. Denies other claims put forward by plaintiff Geely Holding Group Co.,Ltd.
As for the litigation fees of RMB 3510, plaintiff Geely Holding Group Co.,Ltd. shall burden RMB1053, and defendant Kunming Yajieli Trading Co., Ltd. shall burden RMB 2457.”
In another case, Beijing Gome Home Appliance Co., Ltd. Vs. Hanqiao TU, the main text of the judgment of this case is as follows:
“1. Determines the trademark “GOME APPLIANCE” (in Chinese)(relinquishing the exclusive right of “APPLIANCE”) Reg. No. 1097722 owned by plaintiff Beijing Gome Home Appliance Co., Ltd. as the well-known trademark;
2. Defendant Hanqiao TU shall not use the wording of “国美”、“国之美”、“国de美”.
The litigation fees of RMB 500 of this case shall be burdened by defendant Hanqiao TU. The litigation fees prepaid by plaintiff Beijing Gome Home Appliance Co., Ltd. will not be refunded by the court, defendant Hanqiao TU shall directly pay the litigation fees to plaintiff Beijing Gome Home Appliance Co., Ltd.”
However, after 2007, in order to exercise the restraints upon the overheated judicial determination of well-known trademark, the people’s courts launched several discussions on the issue of judicial determination of well-known trademark. These discussions rectified some incorrect practices, including: whether the request for the determination of well-known trademark could be regarded as a claim, and whether the determination of a well-known trademark should be contained in the main text of the judgment.
In the following case, although plaintiff still made the request for the determination of well-known trademark as a claim, the court only conducted the finding of fact, without putting it in the main text of judgment. The case was a dispute over the infringement of exclusive right to use the trademark between ASIMCO Shuanghuan Piston Ring Co., Ltd.(Yizheng) and Yangzhou Hanjiang Shuanghuan Auto Parts Distribution Center.
The plaintiff’s claims include: 1) determination of the trademark “Shuanghuan”(in Chinese) as the well-known trademark; and order defendant to cancel or alter the enterprise name containing the wording of “Shuanghuan”; and 2) litigation fees to be paid by defendant.
The court’s written judgment states: “In conclusion, the court may decide that the trademark “Shuanghuan”(in Chinese) on which plaintiff owns exclusive right has been well-known among the relevant public; plaintiff has made a huge investment in the advertisement and publicity of the trademark “Shuanghuan”(in Chinese) and its products for a long time; authority of Administration of Industry and Commerce as well as judicial authority have already cracked down others’ act of infringing plaintiff’s exclusive right to use trademark for many times. Based on these, the court determines that the trademark “Shuanghuan” (in Chinese) owned by plaintiff as the well-known trademark.”
The main text of judgment states:
“The decision is as follows: Defendant shall alter the mark “Shuanghuan” contained in its enterprise name in the authority of Administration of Industry and Commerce within 30 days since this written judgment comes into effect.
The litigation fees of RMB 1000 shall be burdened by Hanjiang Shuanghuan Auto Parts Distribution Center. The litigation fees have been prepaid by plaintiff, thus, the courts will refund them to plaintiff. Defendant shall submit these fees to the court within 10 days since this written judgment comes into effect.”
b.
Changes
The
Interpretation not only defines that the determination of a well-known trademark can only be regarded as the fact of case as well as the grounds for decision, without being written in the main text of judgment, but also defines that if the case is concluded through reconciliation, the fact that the trademark is well-known will not be ascertained in the reconciliation document either. This judicial interpretation codifies the different standards adopted by each court in judicial practice.
c.
Influence of the change
Although not the main text of judgment, the determination of a well-known trademark in the part of case fact and grounds for decision can also achieve the effect of determining well-known trademark. Although there is not a great impact on the results, the relevant contents are found in the long written judgment as opposed to the main text.
Additionally, since the determination of well-known trademark is not found in the main text of judgment, it is improper for the moving party to request the determination of well-known trademark as a claim. Instead, it is preferable to state the request in the part of fact and grounds.
d.
Presumed reasons for the changes
From the practical viewpoint, the purpose of this change is to standardize the different judicial practices and define relevant issues. From the perspective of jurisprudence, the remarks in the written judgment that refused to determine the trademark “Gome Appliance” as well-known trademark by Wenzhou Intermediate Court can be used as a reference. Although these remarks are the comment on whether the determination of well-known trademark can be regarded as a claim, they also indicate the jurisprudence ground for not listing this part in the text of the written judgment.
“In this case, plaintiff put forward the claim of determining the involved trademark as the well-known trademark. The claims with certain pertinence are put forward against the opposite party in particular litigation. The claims may be tenable based on the acknowledgement of the opposite party. The determination of well-known trademark is mainly based on the determination of the recognition degree of the relevant public. In addition to the examination of the proof and response of defendant, the determination shall also be conducted in combination with the concrete situation of the case, the recognition degree of the relevant public except the parties concerned as well as legitimate interests. As it belongs to the fact-finding of the recognition degree of the involved trademark, it shall not be regarded as a claim. Thus, the court shall not support the claim of requesting the court to determine the trademark “Gome Appliance” Reg.No. 1097722 as a well-known trademark put forward by plaintiff, and only regard the recognition degree of plaintiff’s involved trademark as the case fact to be determined.”
III. Considerations for Establishing Well-Known Marks:
The foregoing introduces the present status of the judicial determination for well-known trademarks in China as well as the analysis used in the latest judicial interpretation. In the following section, suggestions will be given in relation to the contents mentioned above.
1. Apply early, use early.
As mentioned above, it is difficult to gain a determination of well-known trademark for an unregistered mark. As the exclusive right to use the registered trademark can only be obtained through registration, in order to obtain the effective right, early application for registration is of key importance.
Meanwhile, early use is also very important. According to the Trademark Law of P.R.C., the use of unregistered trademark will not be in violation of the law. Furthermore, the continuous use prior to registration will also be recognized. As for the trademark to be used in the future, it is beneficial to use it as early as possible.
2. Pay attention to the maintenance and collation of materials
It is common knowledge that the protection scope of well-known trademark is much wider than the general registration. However, in order to achieve the determination of well-known trademark, it is always required to submit abundant evidence. Typically, several boxes of evidence are required that are comprised of materials from the use and publicity of the involved trademark. Because proving the use of a trademark may require a collection from over ten years, it is imperative that the evidence is properly tracked. The lack of sufficient evidentiary materials has the same effect on a trademark whether or not that mark has become very famous.
3. Unified management of the trademark
Some companies, especially the large, transnational corporations with multiple subsidiaries have their own policies regarding the use and publicity of trademark. These policies are important to avoid insufficient communication between departments and/or branches of the company to properly track the use and publicity of the mark.
Moreover, the situation of the trademark license is also impacts how a trademark is tracked. In some cases, written contracts have been signed but not recorded. More often, there is no written license contract to sign. If there is no written license contract, then it will be hard to prove the legitimate relation of trademark license between the trademark proprietor and subsidiaries. Further, if there is no legitimate relation of trademark license, the use and publicity of the trademark conducted by subsidiaries is not the legitimate use of the trademark. Any evidence in that scenario will therefore be of no usefulness.
In conclusion, it is necessary for a company to have a department that has the unified management over the use, license and publicity of the group company’s trademarks.
4. Request for the determination of well-known trademark in proper cases
In order make a well-known trademark determination, cases of trademark dispute and conflict between trademark and trade name in Article 13 of the Trademark Law are impossible to establish as such. For the cases in dispute over similar trademarks used on the commodities of the same class, it is a waste of time to request the judicial determination of the well-known trademark.
5. Proper format for the complaint
When the parties request the determination of well-known trademark, it is improper to list the request as one of the claims. Instead, it is better to state it in the fact and grounds section. However, the party shall still write clearly in the complaint: “Since the involved trademark is well-known and meets the requirements of the determination of well-known trademark, the request for the determination of well-known trademark is put forward.”
As the judicial determination of well-known trademark shall be based on the party’s request and the practical facts of the case, if the party does not make an explicit request in the complaint, no matter how well-known the involved trademark is and how necessary the determination is in the case, the people’s court will not make a determination.
6. Classifying the trademark requested for well-known determination.
Major corporations will frequently register their trademarks in multiple classes, but it is necessary to indicate explicitly the class of goods and choose the trademark in the class of most well-known goods.
However, in reality, due to the limitation of the Classification of Similar Goods and Services, the class of goods in which some well-known trademarks are used is not exactly compatible with the registered class of goods. This issue is illustrated in the trademark infringement case of Beijing Gome Appliance Co., Ltd. and WENZHOU GUOMEI MACHINERY MANUFACTURE CO., LTD.
Wenzhou Intermediate People’s Court decided that: “in this case, plaintiff’s trademark “Gome Appliance”(in Chinese) Reg. No. 1097722 is registered and approved in class 35, including the services of advertisement, outdoor advertisement, distribution of samples, bill-posting, commodity demonstration, shop window dressing, commercial information, professional consultation of trade business, sales promotion (for others), and public relation.” However, during the practical use of the trademark, plaintiff used the involved trademark on the commercial activities of the chain sales of household appliances. According to the explanation of service trademark in class 35 of the Classification of Similar Goods and Services this class of service “particularly excludes the activity of the commercial enterprise with the main function of selling goods.” Plaintiff’s activity of establishing malls or home appliance supermarkets for the purpose of the chain sales of household appliances has the nature of goods sales. This fact can be further corroborated by both the plaintiff’s statement in the complaint and its business certificate. As each class of goods may involve the sales, if the “goods sales” can be independently approved to use the service trademark, it may come into conflict with the exclusive right of the trademark on the goods of any class. The service of goods sales shall not independently be approved as the exclusive right of the service trademark. Thus, the use of the involved trademark on the chain sales of household appliances by plaintiff is the incorrect use of the registered trademark. The formation of recognition depends on plaintiff’s enterprise name or even the unregistered trademark instead of being acquired from the service items on which the registered trademark is approved to be used. Thus, it can not be adopted to determine the degree of recognition of the registered trademark “Gome Appliance”(in Chinese) Reg. No. 1097722.”
Although Zhejiang Higher People’s Court rectified the above ascertainment, “In accordance with the stipulation of Article 12 of Several Questions on the Application of Law in Trial of Trademark Civil Dispute Cases Interpretation promulgated by the Supreme People’s Court, where a people's court determines whether goods or services are similar, it should make an overall determination based on the normal knowledge of the relevant public with regard to the goods or services. The International Classification of Goods and Services for the Purposes of the Registration of Marks and the Classification of Similar Goods and Services may be used as a reference for determining the similarity of goods or services. Beijing Gome Electrical Appliance Corporation and Beijing Gome Company have used the involved trademark on the chain sales of household appliance for eight years. Relevant trademark administration authority has never determined that Beijing Gome Company has the act of incorrectly using the registered trademark. The trial court neglected the normal knowledge of the relevant public with regard to the sales service of household appliance as well as the degree of recognition of the trademark “Gome Appliance”(in Chinese) owned by Beijing Gome Company among relevant public. The trial court determined that Beijing Gome Company has the act of incorrectly using the registered trademark only based on the explanation of Classification of Goods and Service, and therefore denied that the trademark “Gome Appliance”(in Chinese) is a well-known trademark, which is in unconformity with the basic fact ascertained by the court and shall be rectified.”
However, this case is necessary for us to ponder over. Be sure to choose the correct designated goods during the application for the registration of the trademark and use of the trademark.
7. The relationship between the Chinese and English request for determination of well-known trademark
Transnational corporations typically target their leading trademarks at the global market and are therefore usually in English. However, after entering into China, considering China’s national conditions, these companies will register the corresponding Chinese trademark which will be convenient to be called and easy to be identified. Due to the worldwide unified management strategy of the usage of package and brand, the use of English trademark dominates the Chinese trademark. There is little use or even no use of the Chinese trademark, which makes the companies fall into a passive position.
In light of this, there are two suggestions:
(1) Make proper use of the Chinese trademark.
(2) Make sure that there is a one-to-one correspondence between the Chinese trademark and English trademark.
The following two cases illustrate this issue. Starbucks Corporation and Shanghai President Coffee Corporation v. Shanghai Starbucks Cafe Company Limited and Shanghai Starbucks Cafe Company Limited, Nanjing Road Branch are important cases due to the dispute over trademark infringement and unfair competition.
In this case, the judge states: “the trademark “Starbucks” has close relationship with the trademark “星巴克”, the trademark “星巴克” is the Chinese translation of the trademark “STARBUCKS”, and the variation of the trademark “STARBUCKS” in the areas of Chinese language.”
Compared with the trademark “Starbucks”, the trademark “Starbucks” (in Chinese) was registered later. In December, 1999, the trademark “Starbucks” (in Chinese) was registered upon approval for Class 35, and was later registered by Starbucks Corporation for Class 42 in February, 2000. It is close to the time when defendant Shanghai Starbucks was established, but a little later than the time when defendant Shanghai Starbucks’ enterprise name was pre-approved. In addition, just like many foreign brands, during the daily activity of business publicity, the English trademark “Starbucks” used worldwide has a higher use rate than the Chinese trademark “Starbucks” (in Chinese) used only in the region of China. Thus, as for the trademark “Starbucks” (in Chinese) itself, all the evidence with regard to the time it was registered, the period it has been used as well as the situation of advertisement and publicity is very weak. However, seeing from the viewpoint of the court of first instance that: “the trademark “星巴克” is the only Chinese translation of the trademark “STARBUCKS,” and the variation of the trademark “STARBUCKS” in the areas of Chinese language,” we can find that the degree of recognition of the trademark “Starbucks” has extended to the trademark “Starbucks” (in Chinese). Thus, the trademark “Starbucks” (in Chinese) and trademark “Starbucks” were determined as well-known trademarks jointly.
Dispute over the unfair competition and unregistered well-known trademark infringement is illustrated in the case between Pfizer Incorporation(U.S.A.) and Beijing Xingainian Pharmacy's Outlets Co., Ltd. In this case, Pfizer Incorporation (U.S.A.) claimed that the trademark used on the medicine “VIAGRA,” and “Wei Ge”(in Chinese) have correspondence and consistency with each other. The trademark “Wei Ge” (in Chinese) has become the well-known trademark unregistered in China. Pfizer (U.S.A.) admitted that it had never registered and used the trademark “Wei Ge” (in Chinese) in the mainland of China. At last, both the court of first instance and court of second instance held that: “Pfizer Incorporation (U.S.A.) has never registered and used the trademark “Wei Ge” (in Chinese) in the mainland of China. Moreover, it declared to the public that the formal goods name of the medicine “Viagra” researched and manufactured by it was “Wan Ai Ke”(in Chinese). The relevant evidence cannot give enough weight to prove that “Viagra” is “Wei Ge”(in Chinese). Thus, the court did not support plaintiff’s claim that “Wei Ge” is its unregistered well-known trademark in China.
In the first case mentioned above, although the Chinese trademark “Starbucks” (in Chinese) was registered and used late and the scope it was used was decided as not broad enough even though it is used in China and has one-to-one correspondence with the English trademark “Starbucks.” The degree of recognition of the English trademark “Starbucks” can be extended to the Chinese trademark, so the Chinese trademark shall also be determined as well-known trademark.
While in the second case, the trademark “We Ge”(in Chinese) was not used by plaintiff, and the formal name of plaintiff’s English trademark “VIAGRA” in China shall be translated as “Wan Ai Ke”(in Chinese), that is to say, “Viagra” has other Chinese translated trademark and therefore fails to constitute one-to-one correspondence with “Wei Ge”(in Chinese). In this case, the trademark “We Ge”(in Chinese) cannot be determined as well-known trademark.
Thus, when dealing with the Chinese trademark, the enterprise can take into consideration of the two suggestions mentioned above.
1. The defendant in this case is Chaofang Li, a villager from Zhongcun
Group, Cikang Village, Suhong Country, Jing County, Anhui Province. Chaofang Li registered a Chinese domain name “Chinese Kanwan”(in Chinese) and English domain name “
www.kanwan.com.cn” which are similar to the trademarks “Kanwan Liangge” and “kanwan” registered by Shantow Company. On May 29, 2006, Shantow Company filed a lawsuit against Chaofang Li.
Xuancheng Intermediate Court heard this case publicly on July 6, 2006, and made a decision in favour of Shantow Kanwan on August 4, determining the three trademarks of Shantow Kanwan including “康王kanwan”. As the defendant did not appeal, the decision therefore came into effective.
Yunan Dianhong Pharmaceutical Co., Ltd. petitioned for civil retrial before Anhui Higher Court on December 20, 2006. On June 5, 2007, the case of determining well-known trademark which has come into effect was retried. Appearing in the court of retrial for the first time, Defendant Chaofang Li knew nothing about this case and the fact that she had been a defendant before. She has never received the notice to the defendant, notice for adducing the evidence as well as written judgment.
During the process of retrial, the inside information of the fraud in this case was revealed. Shantow Kanwang found a copy of the identification card of a Anhui citizen randomly, and registered two domain names “Chinese Kanwang”(in Chinese) and “
www.kanwan.com.cn” in the name of this citizen, and found an attorney to represent the defendant in litigation. Finally, this judgment was reversed.
2. Court: Beijing No.2 Intermediate People’s Court; Case No.: unknown; Conclusion date: Sep.20, 2001; Involved trademark: Rolex
3. Case No.:(2007) Huang Intermediate Court Civil Three First No.9; Court: Anhui Huangshan Intermediate People’s Court; Conclusion date: December 24, 2007; Involved trademark: registered trademark “Diaoyu characters and logo”
4. Case No.: (2005) Kun Civil Six First No.77; Court: Yunan Kunming Intermediate People’s Court; Conclusion date: October 31, 2006.
5. Case No. of first instance: (2006) Hu Civil Four First No.12; Court of first instance: Hohhot Intermediate People’s Court; Conclusion date of first instance: April 13, 2006; Court of second instance: Inner Mongolia Autonomous Region Higher People’s Court; Conclusion date of second instance: January, 2007; Involved trademark: Sour Sour Yogurt
6. Case No. of first instance: (2006) Dong Intermediate Civil Three First No.35; Court of first instance: Dongguan Intermediate People’s Court; Court of second instance: Guangdong Higher People’s Court. Involved trademark: Ronghua
7. Case No. of first instance: (2006) Hu Civil First No.14-2; Court of first instance: Hohhot Intermediate People’s Court; Involved trademark: Xiaoweiyang; other information is unknown.
8. The same as note 3.
9. Case No.:(2004) Wu IP First No.32; Court: Hubei Wuhan Intermediate People’s Court; Conclusion date: April 7, 2004; Involved trademark: Gome Appliance.
10. Case No.: (2007) Yang Civil Three First No.0061; Court: Jiangsu Yangzhou Intermediate People’s Court; Conclusion date: December 3, 2008; Involved trademark: Shuanghuan
11. Zhejiang Wenzhou Intermediate People’s Court(2004) Wen Civil Three First No.106 Judgment, the same as note 12
12. Case No. of first instance: (2004) Wen Civil Three First No.106; Court of first instance: Zhejiang Wenzhou Intermediate People’s Court; Conclusion date: August 12, 2005; Court of second instance: (2005) Zhe Civil Three Final No. 244; Court of second instance: Zhejiang Higher People’s Court; Conclusion date of second instance: December 19, 2005; Involved trademark: Gome Appliance
13. Case No. of first instance: (2004)Shanghai No.2 Intermediate Civil Five(IP) First No.1; Court of first instance: Shanghai No. 2 Intermediate People’s Court; Case No. of second instance: (2006) Shanghai Higher Civil Three (IP) Final No.32; Court of second instance: Shanghai Higher People’s Court; Conclusion date of second instance: December 20, 2006; Involved trademark: “STARBUCKS”, “STABUCKS”(in Chinese)
14. Case No. of first instance: (2005) No. Intermediate Civil First No. 11354; Court of first instance: Beijing No. 1 Intermediate People’s Court; Case No. of second instance: (2007)Higher Civil Final No.1685; Court of second instance: Beijing Higher People’s Court; Conclusion date of second instance: March 20, 2008; Involved trademark: Wei Ge
