Warning From Jordan'S Trademark Dispute Case

Michael Jordan (

Jordan sports Limited by Share Ltd (hereinafter referred to as "Jordan sports company") is a Chinese private enterprise with a history of nearly 20 years and annual income of nearly 4 billion yuan.

What kind of story will Jordan encounter with Jordan? Go and have a look with the Xiaobian.

In 2012, Michael Jordan filed a dispute application with the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as "Shang"). It believed that Jordan's "Jordan" and other trademarks infringed their right to name and portrait, and the use of these trademarks would cause the public to misunderstand the source of products and disrupt the normal market order.

The business jury decided to maintain the controversial trademark.

Michael Jordan dissatisfied with the ruling of the Shang jury and filed an administrative lawsuit against the Beijing intermediate people's Court [micro-blog] in September 2014 to apply for the withdrawal of the ruling made by the judges.

In early 2015, the court dismissed Jordan's claim first, and then appealed to the higher people's Court of Beijing.

In May 12th, the Beijing Higher People's court announced the decision on 32 of the 78 Jordan sports trademark disputes. The court upheld the first instance decision and rejected the appeal request of Michael Jordan to cancel Jordan's sports dispute trademark registration.

A spokesman for Michael Jordan said he would apply for a retrial to the Supreme People's Court on this decision.

According to China's legal provisions, Michael Jordan has no advantage over its own appeals and reasons.

There are three controversies in this case. Are there any violations of the right to name, improper influence and damage to public interest and public order?

In an interview with Chen Shaoping, an attorney at Longan law firm, the agent of Jordan sports company, according to the general principles of civil law, the object of the right of name is "name", and a simple surname or name can not become the object of the right of name independently.

In this case, "Jordan" is a common surname in Britain and America. Basketball players Michael Jordan do not have the right to name.

Chinese "Jordan" is only one of the plations of "Jordan". Michael Jordan does not have the right of name for Chinese "Jordan" or pinyin "QIAODAN".

And Michael Jordan himself has not used this name.

One day before the decision of the second instance, Michael Jordan issued a statement that the purpose of the action was not only to protect its right to name, but also to protect consumers from being misled.

For the court's decision, Michael Jordan said: "in the past 30 years, from the early stage of playing on the NBA court, based on my name and jersey number, I gained a reputation and established an internationally famous brand.

I have the right to protect my name and reputation.

At the same time, Chinese consumers and fans like me have the right to know that Jordan sports and its products have nothing to do with me. "

The court held that the focus of controversy in the case did not involve the examination of the actual use of the controversial trademark whether it caused confusion or misidentification of the relevant public. In this regard, Lu Qiuyu, a lawyer of Beijing Jintai Law Firm, put forward a very important point: what is the fundamental purpose of trademark registration? The purpose of trademark registration is to distinguish the goods or services. If the actual use of the trademark is enough to cause public confusion is not one of the reasons for cancellation, then what is the legal value of the trademark registration?

Lenovo and confusion are totally different concepts.

We do not deny that Jordan is a plation of the appellant's family name, but this association is not.

The confusion in meaning is not enough to lead to the fact that ordinary consumers with general rationality are actually confused when buying third people with very high market identities, so that they can not reach the level of social public order that consumers generally confuse. "Chen Shaoping added," in the end, the disputes involved in this case are private interest disputes between equal subjects. Michael Jordan is not a lawsuit to safeguard China's social and public interests. The tenth item (eight) can not be applied to this case. "

"Jordan, QIAODAN" and other core trademarks have been registered for over ten years, and have been certified by well-known trademarks. The legitimacy and stability of their rights are indisputable.

Consumer choice is due to the high cost performance of goods, and the possibility of Lenovo will not determine the consumption decisions of general rational people.

Chen Shaoping said.

How to protect celebrities' names

"Although Jordan is only a common surname, in China," Jordan "refers to Michael Jordan in the broad public perception. When consumers see or even realize Jordan, they usually associate themselves with Michael Jordan, which has established a specific relationship between them.

Zhao Ying lawyer, a legal consultant of the China Internet association credit evaluation center, pointed out that "similar examples include surname Obama to refer to President Barack Hussein Obama of the United States.

If the request has a unique correspondence, the protection of the right to name is almost impossible, considering that many people have the same name.

"In the United States, there is an important content concerning the right to name or personal right, which is not stipulated or adopted by our country, that is, the merchandising right of celebrity personality, also known as the right of publicity."

Professor Liu Ying, School of civil economics and law, China University of Political Science and Law, said.

In the case of "Hai Lan" in 1953, judge Frank clearly put forward that "image right" surpasses the traditional right of privacy and defines it as a kind of property right. This is a landmark judgment.

In the following year, Professor Nimmo, a famous American intellectual property jurist, published the article on "image right". He suggested that celebrities need not to protect privacy, but to protect the business value of identity and to control the business value of their identity.

Chen Shaoping lawyers believe that the Michael Jordan side advocates that the so-called "correspondence", "social influence" and "celebrity effect" are only meaningful when applying the "commercialization of personality elements" system, and the system of "commercialization of personality rights" is not the system stipulated in the ninety-ninth general principles of civil law, neither the right of name nor the right of personality.

The United States takes the name protection under the right of privacy, and makes the commercialization of personality right as the right of publicity, in order to distinguish the different nature of the two party.

The right to publicity or publicity is only protected against the interests of property, but this system is not included in our civil law system.

The 120th provision of the general principles of civil law of China stipulates that "citizens' right to name is infringed upon, and they have the right to request to stop infringement, restore reputation, eliminate influence, apologize, and claim damages."

Liang Yuan, a lawyer from Beijing Jintai Law Firm, told the legal person reporter that there is a legal obstacle to the protection of names by foreign celebrities in China: "because Jordan is not a Chinese citizen, the right to name applies to the fifteenth provision of the law applicable to foreign related civil relations." the content of the right of personality applies to the law of the habitual residence of the obligee.

This brings obstacles to the right to protect the right to name of American basketball star Jordan, who is not a Chinese citizen and China is not a regular residence.

If an enterprise uses the combination of trademark image and text to associate the public with a famous person, the war of Jordan may be another scene in the United States that pays attention to the interests of the right of personality.

How to protect intangible property

The reason why trademark disputes have caused such a wide response is not only because of Michael Jordan's reputation, but also because the value of brand is getting more and more attention.

In the global competition for market resources increasingly fierce, Chinese enterprises in their own business development process, in accordance with the requirements of the market economy established business philosophy is far from developed countries proficient, market-oriented capital operation mode is not rich and effective in developed countries.

Professor Liu Ying said that as far as trademark is concerned, simply as a commercial activity, market economy requires not only the exclusive attributes of all private rights, such as specificity, exclusiveness, etc., but also requires that trademarks have the property of capital, and can create new wealth continuously and produce the effect of increasing value.

Most of the trademarks of Chinese enterprises are simply identified as products, and few people can use them as resources for development.

A series of trademark disputes frequently occur, indicating that the developed countries are using the soft and blind spots of China's developing market economy, the psychological and legal consciousness of Chinese enterprises, which are eager to expand overseas, especially the gaps in intellectual property experience, and to achieve the purpose of controlling and restricting the development of Chinese enterprises in the global scope by means of various market resources capital expansion.

Liang Yuan lawyers believe that most Chinese enterprises have a poor sense of international market and a weak sense of trademark protection, ignoring the protection of their carefully managed brands and giving others an opportunity to take advantage of them.

Moreover, we are not good at using legal weapons to protect our own rights and interests, which leads to not only undefended in advance, but also no remedy after the event.

What needs to be done now is to strengthen the awareness of international protection of trademarks of Chinese enterprises, cultivate the ability to control the market by using intellectual property rights, and more importantly, consolidate the foundation of China's market economy development, renew ideas and improve the environment, and comb out the way of developing the market economic law.

Zhao Zhanling believes that in recent years, Chinese enterprises have made great progress in the use of legal means to safeguard their legitimate rights and interests. "Overall, the awareness of corporate law, especially the awareness of intellectual property rights, has been significantly enhanced. More attention has been paid to the advance layout of trademarks, the number of patent applications and the accumulation of intellectual property reserves."

"In the face of trademark disputes that have occurred, we should actively and cautiously cope with them and properly solve them.

Through negotiation, mediation, arbitration, litigation and other ways, we should actively respond to the lawsuit and implement the national intellectual property strategy.

International cooperation and international coordination should also be carried out to increase the protection of intellectual property rights.

When talking about how to solve the trademark rights disputes, Liang Yuan said, "we should also prevent the widespread use of trademark registration right in order to prevent hidden dangers for long-term interests. This is also a warning from this case."