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A decision rendered by the Putuo District Court of Shanghai in October 2022 has been freshly published by IPHouse, bringing it centre stage once more. In this, court dismissed a trademark infringement suit and partially upheld the defendant’s counterclaim by awarding 70,000 yuan in attorney fees. This decision is a crucial one because it highlights that the courts are paying increasingly close attention to plaintiffs’ subjective intentions.

Hermès is a prestigious French fashion house. Since 1837, it has remained faithful to its artisanal model and humanist values. The Hermès brand and the iconic commercial designs associated with Hermès enjoy a high reputation around the world.

Precis: The ruling in a civil suit against Wuxi Smile IoT Ltd establishes that, when considering whether modified genuine products constitute trademark infringement, whether the alleged acts are detrimental to a trademark owner’s legitimate rights is the key issue.

Based in Switzerland, LVMH Swiss Manufactures SA (‘LVMH Swiss’) is a wholly owned subsidiary of the LVMH Group, offering luxury watches reflecting Swiss watchmaking excellence. TAG Heuer is a watchmaking pioneer and one of the eight brands under LVMH’s Houses in the watches and jewellery sector.

On 14th June 2022, the Beijing High Court rendered the final decision in a trademark dispute administrative retrial proceeding surrounding the registration of a disputed mark “ ”, featuring stylized “M & MONALISA” in class 11. The retrial court revoked the decisions of the trial court and the court of appeal, upholding the TRAB decision that partially revoked the registration of the disputed mark. The retrial decision puts an end to a decade-long trademark dispute that went through the TRAB procedure, two instances of court proceeding, a very rare procuratorial protest of the Supreme People’s Procuratorate and a retrial proceeding, exhausting almost every possible remedy available in the toolbox.

Article 10.2 of China’s Trademark Law sets forth that a foreign geographic name known to the public shall not be used as a trademark, unless such name has other meaning.

Unlike European and American Supreme Courts, the Chinese Supreme Court (SPC) reexamines cases not only on points of law but also on facts. In a way, it constitutes a third degree of jurisdiction, after the court of appeal (the High Court of the Province). This entails a very heavy workload every year. In 2019, the SPC issued more than 500 decisions (judgments and rulings), mostly relating to trademark prosecution matters.

In its recently delivered judgment (Lin Mingkai v. Fuyun, [2018] ZGFMZ No. 43, Sep 3, 2019), the SPC clarified the condition requirements of the prior use defense (Article 59.3 of the Trademark Law), indicating that the eligible person to make the defense is limited to the prior user itself; the "use" must be prior to the application for registration and the trademark owner’s use of the registered trademark; and, for the first time, the SPC makes it clear that geographical scope is a key element to define the "original scope".

During the year 2020, some interesting trademark cases were adjudicated which showcases that the level of protection of trademark rights in China is constantly rising. Most of the judgments were rendered by the Beijing IP Court and the Beijing High Court, in prosecution disputes handled by the trademark administration, i.e., the China Trademark Office (CTMO) and the Trademark Review & Adjudication Board (TRAB) replaced by the China National Intellectual Property Administration (CNIPA) after the recent administrative reshuffling.  Other civil infringement cases illustrate the raising level of financial compensation awarded by the courts, who do not hesitate to use punitive damages and endorse contractual damages.

When goods are manufactured in China by an OEM factory for export, the foreign buyer is not always the owner, in China, of the trademark that is affixed on the goods.
Then, a serious question arises: what if the trademark is registered in the name of a third party, and such third party decides to sue the factory for infringement, and stop the exportation of the goods?

Article 10 of China’s Trademark Law enumerates circumstances where a trademark application will be ex officio refused by the China National Intellectual Property Administration (CNIPA). These circumstances are known as absolute grounds. Article 10.1.2 prohibits inter alia a sign, which is identical with or similar to the national flag of a foreign country, from being used (and registered) as a trademark, unless the consent of the government of that country is obtained.