Weekly China Trademark News Updates

June 22, 2021

1. Land Rover prevailed against Landwind X7

On May 27, 2021, the Beijing Intellectual Property Court concluded the final decision of an unfair competition lawsuit between Jaguar Land Rover Limited (“JLR”) and Jiangling Holdings Co., Ltd. (“JLH”) and Beijing Dachang Landwind Motor Sales Co., Ltd. (“Landwind”). The court ordered JLH and Landwind to immediately stop all unfair competition actions and affirmed the first instance court’s decision on publishing a statement to eliminate negative impacts, compensation for losses and reasonable expenses of RMB 1.5 million (USD232,200).

In this case, JLR claimed five design features of its “Range Rover Evoque” had the characteristics that were different from the common exterior design of ordinary cars, and these designs were distinctive as product decorations. JLR’s evidence were also sufficient to prove that its “Range Rover Evoque” car enjoyed certain fame and influence in China’s car industry. Accordingly, Range Rover Evoque’s exterior decoration when used as product shape decoration satisfied the “decoration with certain influence” as stated in the Chinese Anti-Unfair Competition Law. The shape and decoration used by JLH on the “Landwind X7” car was enough to confuse and misled the relevant public with JLR’s “Range Rover Evoque,” which constituted as unfair competition.

The first instance court calculated the damages based on the sales volume and unit profit of the infringing product, while referring to the 2015 domestic vehicle industry sales profit of domestically funded vehicle companies published by “National Passenger Car Information Exchange Association,” the sales data and the lowest unit price published on the official website of JLH. Also considering the duration of the unfair competition in the case, the role of the car product shape and decoration played during sales of “Landwind X7”, the range of sales, and the popularity of the “Range Rover Evoque” car shape. The second instance court affirmed the first instance court’s calculation methods.

2. Huawei’s “H” trademark was found not similar to Under Armour’s logo

Recently, the Beijing High Court made a final judgment on an administrative trademark regarding Huawei’s “H” letter trademark rejection appeal.

The disputed trademark was an “H” letter with design applied by Huawei in September 2017. The cited mark was Under Armour’s registered trademark “UA” mark with design.

The Beijing High Court as the second instance court found that Huawei mainly engaged in communications, computers, mobile wearable devices, and artificial intelligence businesses, and Under Armour mainly engaged in the sports equipment and other businesses. According to Huawei’s description regarding its design of the disputed trademark, the periphery was a circle, and inside was a letter “H” composed of two “U”s, which represented the initial letter of Huawei’s main logo “HUAWEI.” The graphic design of the cited trademark is formed by intersecting the first letters U and A of “Under Armour” and used in class 25 on clothing related goods. The Chinese consumers already associated Under Armour’s logo with “An De Ma in Chinese.”

In terms of the compositional elements and appearance of design trademarks, the compositional concepts between the disputed trademark and the cited trademark were different, the design style, overall appearance, and relevant public involved were also different. The two trademarks could be distinguished if they were used in downloadable computer application software and other goods in class 9. Accordingly, the disputed trademark and the cited trademark did not constitute similar trademarks, and the first instance court and other related judgements shall be revoked.

3. The Supreme People’s Court issued the “the People’s Court Online Litigation Rules”

On June 17, the Supreme People’s Court held a press conference and issued the “the People’s Court Online Litigation Rules” (“Rules”). The “Rules” is the first judicial interpretation issued by the Supreme People’s Court to guide people’s courts across the country to carry out online litigations. It will come into force on August 1, 2021. Below are some of the highlights of the “Rules.”

First, clarify the scope of applicable cases, including various civil, administrative, special procedures, and enforcement cases. Online litigation can also be applied to some parts of expedited criminal proceedings and commutation and parole cases.

Second, clarify the validity of “deemed as original” electronic materials. Electronic materials that have been reviewed and approved by the people’s court can be used directly in litigation without submitting the originals.

Third, provide rules and guidelines on the authenticity of blockchain storage data, which will help parties to actively use blockchain technology to solve the dilemma of “difficulty in storing evidence” and “difficult to authenticate” electronic data.

Fourth, confirm requirements for online trial environment, discipline, publicity, and witness appearances.

Fifth, all parties are allowed to conduct online mediation, evidence exchange, investigation and inquiry, and other litigation activities in an asynchronous manner within a certain period of time.

Sixth, comprehensively regulate the applicable conditions, scope of content, methods and effective standards of electronic delivery, while promote the strengthening of the application of electronic delivery.

4. CNIPA: Trademark Examination and Adjudication Standards (Draft for Comments)

The CNIPA launched the revision of the current Trademark Examination and Adjudication Standards in July 2020 and published the draft for comments from the public. The revised content mainly includes two aspects: the first is to add new standards on trademark formality examination and trademark affairs examination; the second is to revise and improve the substantive standards of trademark examination and adjudication. The first aspect includes the standard for applying Article 4 of the Chinese Trademark Law, clarifying the applicable factors, considerations, and applicable circumstances for malicious trademark applications filed without the intent to use. The second aspect includes revision and improvement of applicable standards of other provisions in the Chinese Trademark Law, including the applicability of prohibited filings and prohibited use, standards and considerations for determining identical or similar trademarks, standards for determining distinctiveness for 3D marks, color combination marks, sound marks, etc.

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