Who Does Fu Mingxia'S "Coarse Pants" Brand Belong To?

At the beginning of 2001, Fu Mingxia, the household name "Diving Queen", was accused of wearing a thick spoken trousers at the signing ceremony of Coca Cola Co.

It was in this incident that the Baolong Shoes Co., Ltd., Putian, Fujian (hereinafter referred to as Baolong shoes company), applied the trademark "HYSTERIC" to the twenty-fifth categories of commodities.

Japan

Plaintiff:

Fu Mingxia

"HYSTERIC" is a famous clothing brand in Japan. Its products are exported to many countries and regions such as Europe, America, China, Hong Kong and Taiwan.

European community has always used "HYSTERIC GLAMOUR", "HYSTERIC" and "HYSTERICS" as the main brand of its clothing products.

Ni ye, an agent of Ou Ruo community company, said in an interview with our reporter.

It is understood that in March 19, 2001,

If the European Community company disagrees with the ruling, the business jury will be sued to the court, and the Baolong shoes company will take part in the lawsuit as a third party.

Court: the first judge maintained the judge's ruling.

"In early 2001, Fu Mingxia, a household known" Diving Queen ", attracted the media's accusations at the signing ceremony of Coca Cola Co's signing ceremony for wearing a thick spoken language. Fu Mingxia's" vulgar pants "were the" HYSTERIC "brand clothing of the European Community company.

According to the European Community company, when the incident was widely reported by the media, the third people applied to the Trademark Office on 19 March 2001 to seize the "HYSTERIC" trademark on twenty-fifth categories of clothing and other commodities. Apparently, it was learned by the Chinese media about Fu Mingxia's "trouser dress" incident that the trademark "HYSTERIC" is a well-known brand in the clothing industry, and applied for registration in the mainland of China in an attempt to take the "HYSTERIC" of EOU community company as its own.

"The report of Fu Mingxia's" vulgar pants "incident by the EO community company has not provided evidence to prove that the report is not the use of its trademark.

In the court trial, the business jury said that the evidence submitted by the European Community company in turn was its product sales document, its trademark registration certificate in Hongkong of China and the ruling in Taiwan District of China. The publicity materials of the company's publicity materials are not the evidence or evidence of its "HYSTERIC" trademark in mainland China, nor is it sufficient to prove that its trademark is known to the Chinese public. It is not enough to prove that the third party's application for registration of the "HYSTERIC" trademark is malicious.

At the same time, because "HYSTERIC" is a common English word, it is not original, nor can it be considered that third people are malicious.

After hearing the case, the Beijing intermediate people's court held that the defendant's ruling was clear, the application of the law was correct and the procedure was legal.

Therefore, in the first instance, the reappraisal order of the "HYSTERIC" trademark objection was upheld by the business jury.

"Strictly speaking, according to Chinese law, the" HYSTERIC "related products have not been sold in mainland China, but the use of trademarks should not be limited to manufacture and sale. Fu Mingxia is wearing the brand clothing and causing media attention. This incident should also be regarded as the use of the trademark in China.

After the first instance, Ni Ye believes that although "HYSTERIC" has not been sold in mainland China, it has enjoyed a high reputation in other countries and regions. The relevant public in mainland China may have known the brand in other ways. The first instance finds that it is not convincing enough, and the European community has decided to appeal.

Expert:

Third person behavior does not constitute trademark rush registration

"Trademark rush registration is the act of first knowing the existence of another person's trademark, aiming at illegal profit making or unfair competition, and preempting the registration of others' prior trademarks. The trademark rush registration destroys the market order of honest and credit and fair and reasonable market competition rules."

Huang Hui, an associate professor of the school of intellectual property, Southwest University of Political Science and Law, said in an interview with our reporter that in order to constitute a trademark rush registration, certain conditions must be satisfied: knowing the existence of others' trademarks; the purpose of registration is to have "malicious intent" for illegal interests or unfair competition; and registration acts objectively destroy the market order of honesty and credit and fair market competition rules.

Only at the same time meeting these three conditions can a trademark be seized.

Huang Hui believes that in the light of this case, the third person's behavior does not constitute a rush.

Judging from a series of evidence from the trial, the plaintiff's "HYSTERIC" trademark has not been registered and used in mainland China, nor has it formed goodwill in mainland China, nor has it been "celebrated" or "affected" by "use". Moreover, third people have no way to know the fact that the plaintiff has "well-known trademark" or "there is a certain impact on the trademark". The third party registration does not have the purpose of illegal profit making or unfair competition. It does not belong to the pfer of illegal profit making or the malicious threat to the registered person after registration, nor does it belong to the exclusion of similar competitors through registration.

Therefore, we can not simply regard the trademark registration of the third party based on the "first application principle" as a preemptive behavior.

"Trademark usage, in accordance with the relevant judicial interpretation of our country, refers to the use of trademarks in commodities, commodity packaging or containers, and commodity trading books, and also in the use of trademarks for advertising, exhibitions and other commercial activities."

Huang Hui believes that Fu Mingxia's "vulgar pants" incident mentioned in the case clearly cannot be identified as the plaintiff's "use" of his trademark.

Because the plaintiff has no direct use of the purpose of his trademark, nor is it used in the advertising activities of his own products, but is used informally in the advertising signing ceremony of others - Coca Cola Co, which obviously can not be regarded as the legitimate use of trademark law to produce the effect of trademark law.