New Hundred Lun Trademark Infringement: Where Does 98 Million Yuan Come From?

According to Zhou Lelun statistics, from July 2011 to the time of prosecution, the total amount of new products sold by the new company was more than 1 billion yuan. The plaintiff sued the defendant, the new defendant, to stop the infringement and eliminate the influence immediately, and to compensate for the loss of 98 million yuan and the reasonable cost of protecting the rights.

In this case, the court held that the defendant made a profit of 195 million 800 thousand, and considered some factors to decide whether the compensation should be 98 million yuan (half of the profits). Is the penalty too heavy? The trademark law stipulates that the actual loss is difficult to determine and is determined according to the profits gained by the infringer due to infringement. Is New Balance earning 1 billion yuan due to infringement?

Huang Wu, a professor of intellectual property in East China University of political science and law and a researcher at the center for the protection of intellectual property rights of the Supreme People's court, explained that "compensation for losses" as a form of civil liability is to fill the losses suffered by the obligee because of infringement. The most scientific way is to calculate the loss of the causal relationship between the infringer and the obligee after the infringement.

According to the trademark law, there are 4 kinds of calculation basis for damages: the loss of the obligee, the profits of the infringer, the license fees, and the statutory compensation. Its application follows the corresponding rank. That is to say, when the former calculation method can not be determined, the next calculation method can be applied.

The case involves reverse confusion. Usually, the confusion is positive, that is, the subsequent market competitors are the first to win the reputation of the trademark, trying to confuse it with the fact that small businesses have the intention of riding big enterprises. On the contrary, reverse confusion is the use of unknown trademarks by well-known multinational companies. Although it does not have the meaning of free riding, it still leads to confusion among consumers.

Huang Wushuang believes that the plaintiff's loss is first manifested as a decrease in market sales, or should not increase part of the loss. Whether there is any loss in reverse confusion is worth discussing. If the reverse confusion only affects the source identification of plaintiff products and has not caused actual losses, the remedy for damages is improper.

"Of course, the loss is not only reflected in the reduction or non growth of market share, but also the damage of goodwill." Huang Wushuang said that if the defendant used the "new hundred Lun" has caused the relevant public confusion, it can be corrected by advertising to eliminate the impact and restore goodwill.

In the judicial practice of the United States, the "corrective advertisement" is often used to restore the goodwill damage caused by the infringement, and the amount of compensation is 1/4 of the advertising expenses borne by the infringer. In China, courts usually only judge the defendant to issue an apology statement, which is not in line with the law of correcting the damage of goodwill in the market and can not restore the goodwill effect. Huang Wushuang suggested that we should support the correction of advertising fees in order to provide a large number of repeat advertisements for the plaintiff.

Chen Ruojian, partner of Duan Duan law firm, said that the infringement of New Balance was too obvious in this case. He still used the "new hundred Lun" as a Chinese symbol when he knew that the mainland had "new hundred Lun" trademark. The huge compensation in this case is also milestone in Kim Jaejoong's dispute over foreign ownership.

The brand predicament faced by New Balance is actually a warning. In mid April, the Chinese brand "Jordan sports" and the US NBA superstar and "Michael Jordan" flew to the decisive moment for three years in the case of Michael. The second instance of the high court of Beijing held that the 10 evidences submitted by Michael Jordan's agent were not in the category of new evidence and were not accepted.

At the beginning of May, the Beijing Higher People's court made a judgment on 32 of the 78 Jordan sports trademark disputes, and maintained the first instance judgment, and dismissed Michael Jordan's appeal request to cancel Jordan's sports dispute trademark registration.

A spokesman for Michael Jordan's legal adviser said, "we regret the court's decision on trademark disputes. The purpose of Michael Jordan's action is not only to protect his right to name, but also to protect consumers from being misled. We will apply to the Supreme People's court for retrial in accordance with the judgment of the trademark dispute case.

A similar trademark infringement dispute also has controversy over the iPad trademark of Proview and apple. It is also the first registration of mainland enterprises in China. When Apple Corp entered the Chinese market, iPad trademark was owned by others. Although in 2009, Proview Taipei company spanferred the iPad global trademark to 35 thousand pounds to Apple Corp, but Proview Shenzhen declared that iPad's trademark rights in mainland China did not contain the agreement.

Subsequently, the two sides launched a protracted trademark litigation. Until early 2012, the two sides reached a civil mediation. Apple paid $60 million to Proview and settled the iPad trademark dispute in mainland China. In July 2, 2012, the iPad trademark was officially spanferred to the Apple Corp, announces that the case has officially come to a close.

China " Trademark law The principle of "registration first" made many very well known trademarks registered first and then sold for sale. And a company that wants to develop is becoming more and more difficult to register a trademark that is "nice and nice". It is worth noting that in a series of dispute disputes with Chinese trademarks as the core, China's trademark management institutions such as trademark review board and people's courts at different levels make different decisions.

Why frequent foreign enterprises enter the Chinese market to encounter trademark disputes? Huang Wushuang said that many foreign enterprises had neglected the trademark rights matters before entering the Chinese market. Although these enterprises have gained popularity in China and have Chinese symbols, foreign companies often renamed their surnames because of "deficit" in the presence of registered trademarks. "Lexus" was renamed "Lexus" and "land tiger" was renamed Land Rover.

"Of course, there is a lack of integrity in the process of trademark registration in China. It is also a factor that can not be underestimated by making advance registration of other trademarks that have certain influence abroad." Huang Wu Shuang added.

Chen Ruojian admitted that the Chinese symbols used by foreign companies after entering China were indeed unregistered, but only after playing brand recognition did they find that they had been registered before others. If a foreign company wants to get the right to use Chinese symbols, it must prove that it is the first user of the Chinese symbol, but the proving process is often rather difficult. If foreign companies are not yet aware of the trademark rights in the Chinese market, they will pay a high price in the future, just like New Balance.

Yu Mingyong, vice president of Guangzhou intermediate people's court reminded. New balance The case is a reminder to many foreign brands who want to open up the Chinese market: first, knock the door of intellectual property right before fair competition.

Huang Wushuang suggested that when foreign enterprises plan to enter the Chinese market, they should entrust agents familiar with the Chinese market for trademark retrieval and apply for trademark registration as soon as possible. When registering a trademark, register the corresponding Chinese character trademark as far as possible. Foreign enterprises may implement the monitoring of trademark infringement or involvement in the market. tort So that we can deal with it in time. In addition, foreign enterprises should be familiar with Chinese laws and be familiar with the judgments made by Chinese courts in relevant trademark cases, so as to understand the new trend of the court's handling of trademark cases.