To revoke the trademark of Jordan and his pictures
Recently, the Supreme People's Court (hereinafter referred to as the Supreme Court) made a retrial decision on the administrative dispute over the trademark "Jordan and figure". It was found that Jordan sports Co., Ltd. (hereinafter referred to as Jordan sports Co., Ltd.) knew that Michael Jeffrey Jordan (hereinafter referred to as Michael Jordan) had a long-term and wide reputation in China, and still used "Jordan" to apply for registration of the disputed trademark, which was easy As a result, the relevant public mistakenly believes that the goods marked with the disputed trademark have specific relations with Michael Jordan, such as endorsement, permission, etc., which damages Michael Jordan's prior name right, and the judgment of the first and second instance and the judgment of the sued are revoked. So far, this highly concerned case ended in the victory of Jordan the flying man.
Application for cancellation rejected
It is understood that Jordan sports company submitted the trademark application (hereinafter referred to as the disputed trademark) No. 6020578 "Jordan and figure" in April 2007, which was approved to be registered in April 2010 and used in category 25 "clothing, swimsuit, shoes, mountain climbing shoes, hats, socks" and other commodities, with a special period up to April 20, 2020.
On October 31, 2012, Michael Jordan applied to the Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce (the original business judge) for cancellation of the trademark of Jordan sports Company No. 6020578 "Jordan and figure". The reasons are as follows: (1) it is a world-famous American basketball sports star, with high popularity in China. When the relevant public sees the same or similar identification with "Jordan" and "Qiaodan", they will associate the above identification with it. Jordan sports company and its affiliated companies apply for registration of a large number of logos related to Jordan sports company, including the disputed trademarks, as trademarks when they know or should know their popularity, which is a violation of the principle of good faith as stipulated in Article 2 of the Anti Unfair Competition Law of the people's Republic of China (hereinafter referred to as the Anti Unfair Competition Law), and "unauthorized" as stipulated in Article 5 (3) The unfair competition behavior of using other's enterprise name or name to mislead people to think it is other's goods. （2） The registration of the disputed trademark damages its prior name right and prior portrait right, which belongs to the situation of "damaging other's existing prior right" stipulated in Article 31 of the Trademark Law of the people's Republic of China (hereinafter referred to as the Trademark Law) amended in 2001. （3） The behavior of Jordan sports company belongs to the situation of "having other adverse effects" as stipulated in Article 10, paragraph 1 (8) of the trademark law, and the situation of "obtaining registration by other improper means" as stipulated in Article 41, paragraph 1 of the trademark law.
According to the trial of the original business judges, although Michael Jordan is well-known in China and basketball field, there are some differences between the words "Jordan" and "Michael Jordan" contained in the disputed trademark and the Chinese translation of "Michael Jordan", and "Jordan" is a common surname in Britain and the United States, so it is difficult to identify the existence of this surname and Michael Jordan Of course. When promoting the use of Michael Jordan's name and image, Michael Jordan and its business partner Nike use the full name of "Michael Jordan" or "Michael Jordan", as well as the logo related to Michael Jordan's flying dunk action image. Neither the media nor Nike has formed a unified and fixed form of use of this reference. It is difficult to determine that the registration of the disputed trademark damages the name right of the prior right claimed by Michael Jordan. The registration of the trademark in dispute does not belong to the circumstances specified in Article 10, paragraph 1, item 8, and Article 41, paragraph 1 of the trademark law.
To sum up, on April 14, 2014, the original business judge made a ruling on maintaining the registration of "Jordan and figure" Trademark No. 6020578 (hereinafter referred to as the sued ruling).
The court of second instance did not support it
Michael Jordan, not satisfied with the ruling of the defendant, filed an administrative lawsuit with the first intermediate people's Court of Beijing (hereinafter referred to as the court of first instance) to request the cancellation of the ruling of the defendant. Michael Jordan submitted 20 evidences to the court of first instance to prove his popularity in China and his malice in applying for registration of the disputed trademark. Jordan sports submitted 25 pieces of evidence to the court of first instance to prove that after use, the disputed trademark has a high reputation, and the relevant public will not have confusion and misidentification.
The court of first instance held that the Chinese part of the trademark in dispute was "Jordan". "Jordan" is an American surname, and the evidence in this case is not enough to prove that the single "Jordan" clearly points to Michael Jordan. Moreover, there is a big difference between the clothing and other goods designated to be used by the disputed trademark and Michael Jordan's influential basketball field. It is not easy for the relevant public to associate the disputed trademark used in the clothing and other goods with Michael Jordan. The existing evidence is not enough to prove that the registration and use of the disputed trademark improperly used the popularity of Michael Jordan, or may have other impact on Michael Jordan's name right. Therefore, the evidence in this case is not enough to prove that the registration of the disputed trademark damages Michael Jordan's right of name.
As to whether the right of Michael Jordan's portrait has been infringed, the court of first instance held that the figure part of Michael Jordan's trademark in dispute was shadow design, which was the image of people playing basketball. Although the image is highly similar to a photo of Michael Jordan, the evidence in the case is not enough to prove that the public will recognize the image in the disputed trademark as Michael Jordan.
The court of first instance pointed out that the circumstances involved in the case did not meet the applicable conditions specified in Item (8) of the first paragraph of Article 10 of the trademark law, and that the evidence on file was not sufficient to prove that the registration of the disputed trademark violated the first paragraph of Article 41 of the trademark law. In conclusion, the court of first instance upheld the ruling of the defendant.
Michael Jordan refused to accept the first trial decision and appealed to the Beijing Higher People's Court (hereinafter referred to as the court of second instance). After the trial, the court of second instance rejected the appeal and upheld the original judgment.
Retrial ruling revoking trademark
Michael Jordan applied to the Supreme People's court for retrial against the judgment of the second trial, requesting to cancel the judgment of the accused and the judgment of the first and second trials.
According to the retrial of the Supreme Court, the focus of the case is: (1) whether the registration of the disputed trademark damages the prior name right and portrait right claimed by Michael Jordan, and violates the provision of Article 31 of the trademark law that "the application for trademark registration shall not damage the prior right of others"; （2） Whether the registration of the disputed trademark is "harmful to the socialist moral fashion or has other adverse effects" as stipulated in Article 10, paragraph 1, item 8 of the trademark law; (3) whether the registration of the disputed trademark is "obtained by deception or other improper means" as stipulated in Article 41, paragraph 1 of the trademark law.
As for the focus of controversy I, the Supreme Court held that Michael Jordan had a high reputation in China until 2015 before the application date of the disputed trademark in the case, and his popularity was not limited to the field of basketball, but had become a public figure with a high reputation. Jordan sports company, knowing that Michael Jordan has a long-term and extensive popularity in China, still uses "Jordan" to apply for registration of the disputed trademark, which is easy to cause the relevant public to mistakenly think that the goods marked with the disputed trademark have specific relations with Michael Jordan, such as endorsement, license, etc., which damages the prior name right of Michael Jordan. The figure part of the logo in dispute is only a silhouette of black figure, which does not contain any personal characteristics related to Michael Jordan except the body contour. In addition, Michael Jordan does not have other legal rights in the corresponding actions of the logo, and other natural persons can also make the same or similar actions. Therefore, Michael Jordan can't enjoy the right of portrait on the logo, and his claim that the registration of the disputed trademark damages his right of portrait can't be established.
With regard to the second focus of the dispute, the Supreme Court held that the disputed trademark logo could not have a negative and negative impact on China's political, economic, cultural, religious, national and other social public interests and public order, and did not support Michael Jordan's application for retrial for the registration of the disputed trademark that violated the provisions of Article 10, paragraph 1 (8) of the trademark law.
As for the third focus of the dispute, the Supreme Court holds that the registration of the disputed trademark does not belong to the behavior of disturbing the order of trademark registration, damaging the public interest, improperly occupying the public resources, or seeking the improper interest in other ways, does not belong to the "other improper means" specified in the first paragraph of Article 41 of the trademark law, and violates Michael Jordan's registration of the disputed trademark The reason for the retrial of the application provided for in the first paragraph of Article 41 of the standard law shall not be supported.
To sum up, the Supreme Court held that there were errors in the judgment of the defendant, the judgment of the first instance and the judgment of the second instance in the determination of facts and the applicable laws, and the judgment revoked the administrative judgment (2015) No. 1575 of Beijing Higher People's court; the administrative judgment (2014) No. 9172 of Beijing first intermediate people's court; and the Trademark Review Committee of the former State Administration for Industry and commerce Kspz [2014] No. 052424 on No. 6020578 "Jordan and figure" trademark dispute ruling.
