News and Cases from China: May 2017

Beijing’s luxury Pangu 7 Star Hotel held to have infringed a registered ‘Pangu’ trade mark

The Pangu 7 Star Hotel is generally considered to be Beijing’s top luxury hotel - although five is the maximum number of stars awarded in the international hotel rating tradition.  In a first-instance decision, the Beijing Chaoyang District People's Court recently found that, in using ‘Pangu’ on the top of its hotel as well as in advertising materials, Pangushi International Hotel Co., Ltd. had infringed the Plaintiff’s ‘Pangu’ trade mark, registered in relation to hotel services. The defendant company was ordered to immediately cease the infringement.

 

盘古七星酒店侵权案

因盘古氏国际大酒店有限责任公司在其经营的北京盘古七星酒店大楼顶部、户外广告及宣传册中突出使用“盘古”字样,侵犯了他人在先注册的商标专用权。近日,北京市朝阳区人民法院一审判令盘古氏公司停止上述商标侵权行为。

朝阳法院经审理认为,盘古氏公司在其经营的酒店大楼顶部镶有“盘古”二字,在户外LED广告屏中使用“盘古户外媒体”字样,上述以单独或组合方式突出使用“盘古”字样的行为,均属于商标性使用。盘古氏公司的酒店相关服务与“盘古”注册商标核定的服务种类相同,属于在同一种商品上使用与注册商标相同或近似的商标,该行为未征得兰先生许可,亦未支付相关许可费,侵害了兰先生盘古文字商标的专用权。

 

Largest Counterfeit Shoe Case in China to date

Recently, police in Anhui Province raided a factory where counterfeit sports shoes were being made. Over 500,000 pairs of shoes, 60 million logos and packaging materials, valued at up to 600 million Yuan (approx. US$ 88.3 million), were seized, making this the largest counterfeit shoes case in China to date. The case has already been transferred to the local court where it is awaiting trial.

 

国内最大假冒“匡威”运动鞋案告破

近日,安徽蚌埠警方破获了公安部督办的假冒品牌运动鞋案,查扣各类假冒品牌运动鞋50余万双,假冒品牌标识及包装物6000多万枚,涉案金额达6亿多元,这也是目前国内最大的假冒品牌运动鞋案。目前,此案已移交当地法院审理。

 

First Instance decision finds a Cloud Storage Service Provider Liable for Infringement  

The Beijing Shijingshan District People’s Court recently held that the Defendant, Alibaba Cloud, a service provider, had not taken adequate steps to prevent the publication of allegedly infringing material.  It had had notice of the allegedly infringing content for 8 months, which far exceeded the normal response time. The Court held that Alibaba Cloud had infringed and ordered it to pay compensation of about RMB260, 000 (approx. US$ 38,000) to the Plaintiff, Locojoy.  The Defendant has already filed an appeal to the Beijing Intellectual Property Court.           

 

全国首例服务器提供商阿里云被判侵权

北京市石景山区人民法院一审认定被告阿里云计算有限公司侵权,判令被告赔偿原告北京乐动卓越科技有限公司经济损失及合理费用约26万元。法院认为被告在长达8个月的时间里未对服务器使用方发布的涉嫌侵权内容采取任何措施,远远超过合理反应时间,主观上存在过错,客观上导致了损害后果的持续扩大。被告不服一审判决已向北京知识产权法院提起上诉。

 

Peak Sport Company succeeds against use of OEM mark ‘PEAK SEASON’

Recently, the Shanghai Intellectual Property Court gave final judgment in the ‘Peak’ trade mark case. Peak Sport, a famous Chinese sportswear manufacturer, had registered the trade mark ‘Peak’ in China.  The Defendant, an American company, had registered the mark  ‘Peak Season’ (PEAK being the most distinctive and significant part of the mark) in the US and licensed a Chinese company to manufacture and export clothing under the mark. Peak Sport subsequently became aware that the US licensee was exporting ‘Peak Season’ branded clothing, and commenced trade mark infringement proceedings in China.  It failed at first instance, the Court finding there had been no trade mark use in China.

Peak Sport then appealed to the Shanghai IP Court, which found in its favour.  Although the products were not available on the Chinese market, the fact that they were being sold on Amazon.com meant that the Chinese public could have access to them.  The mark served as an indictor of source and was, therefore, being used as a trade mark in China.   Given the overall similarity of the marks, there was likely to be customer confusion.  Because the products had not entered the market in China, the Defendants were ordered to pay only reasonable costs of RMB 20,000 (approx. US$ 2,935.00).

The key issue for trade mark disputes involving foreign OEMs, is whether use of the trade mark in the OEM constitutes ‘use’ under China’s  Trademark Law.

 

匹克公司成功阻击“PEAKSEASON”

近日,上海知识产权法院就匹克公司起诉的一起关于涉外定牌加工侵犯其商标专用权的案件作出终审判决。判令两被告立即停止侵权,并赔偿经济损失。

有专家表示,涉外定牌加工是否构成商标侵权与商标使用的认定有关,如果涉外定牌加工构成商标使用且符合我国商标法商标侵权判断标准的,则构成商标侵权。