True Or False Jordan? Can "Fly" Jordan Reverse "Fujian" Jordan?

From February 2012 in Shanghai second intermediate people's court to sue Jordan Sports Limited (hereinafter referred to as Jordan sports) name infringement, the "basketball flying man" Michael Jordan (hereinafter referred to as Jordan) and this Fujian enterprise series lawsuit has been playing for more than four years.

Unfortunately, this time, he is no longer as omnipotent as on the court. At present, except for the earliest tort civil disputes, 78 trademark dispute cases have not yet been won.

According to the relevant laws and regulations, Jordan first filed with the Trademark Review and Adjudication Board of the State Administration for Industry and commerce.

After the ruling was dismissed, the dispute application could only be brought to the Beijing Municipal Intermediate People's court for an administrative lawsuit against the business jury. Jordan sports also had to take part in the lawsuit, but his status changed from defendant to third.

The 78 case was defeated in the Beijing intermediate court, and Jordan appealed to the Beijing high court.

68 of the results have been released, and the court has applied for a retrial to the Supreme Court, and 50 of the retrial applications have been rejected.

Of the remaining 18 cases, the Supreme Court held that 10 of them met the conditions for retrial and were heard on April 26, 2016.

In this regard, Jordan issued a statement saying: "I am glad that the Supreme People's court decided to reconsider Jordan's sports trademark dispute on the World Intellectual Property Day.

These cases are of great importance to me.

For many years, Jordan sports has been using my name, identity and image unfairly, until today, he is still misleading consumers.

I hope that through this retrial, we can stop these improper actions.

I respect China's law and look forward to the judgement after the case is heard. "

In contrast, Jordan sports side is much more quiet, agent Ma Dongxiao lawyer told reporters: "the company is very low-key now, because in the past, every time the report came out, many people criticized or even shouted abuse on the Internet.

When the company started business, it may be a little unprofessional, but I think Jordan's sports have been finished over the years. The SFC has approved the listing, but it has been delayed so far.

They have spent more than ten years on these standards, and have invested a lot in public welfare.

And after so many rounds of reports, everyone knows that there is no relationship between them.

Lawyer Jordan showed the contrast between Jordan's photo and Jordan's trademark.

It was only 5 years after losing the lawsuit repeatedly.

Although the Supreme Court has tried 10 cases in court, the prospect of Jordan's rights is still not very optimistic, because Jordan sports hardly use the 10 trademarks.

According to the prospectus submitted to the SFC before Jordan sports, the company mainly uses 4 trademarks, and the other trademarks are mainly surrounded by defensive registration.

Jordan applied to the Supreme Court for retrial against these 4 trademarks, and was rejected as the other 46 similar cases.

At present, there are 18 cases of Jordan's trademark disputes which have not yet been concluded by the Supreme Court. The common point is that when Jordan applied to the business jury to declare a trademark invalid, the time of approval and registration from these trademarks was less than five years.

According to the trademark law, within five years from the date of trademark registration, the prior obligee or interested party may request the Trademark Review and Adjudication Board to declare the registered trademark invalid.

For malicious registration, the well-known trademark owner is not subject to 5 years' time limit.

The legal basis advocated by Jordan when he applied and prosecuted was that Jordan's sport violated his "prior right" of his right to name.

"For malicious registration, our country's trademark law only stipulates that a well-known trademark can not be restricted for 5 years.

The right of name is a prior right, not a well-known trademark, and is not subject to special protection.

But in EU law, if you are maliciously registered, there is no such restriction that you can not live in your life. "

Beijing Wan Hui Da law firm senior partner Huang Hui said.

Huang Hui explained that this reflects a kind of value balance of legislators. If a trademark has been registered for many years, no one will come out to comment, it will form a reliance interest. It should be protected from the angle of right stability and market order. 5 years is actually a balance point.

The understanding of the business jury is similar.

In the court hearing of April 26th, the representative of the judges of the jury said that in the case of trademark disputes, the referee's position of "administrative authority" in the case of trademark disputes was "from the standpoint of our position, we neither encourage malicious registration nor encourage the exercise of rights."

These actions may lead to damage to the relevant public interests, damage to the order of trademark registration and the order of market competition.

She further explained that although the business jury decided to reject Jordan's trademark invalid application for Jordan sports, he also made corresponding investigation and comment on Jordan's malpractice in sports, and thought that some behaviors were improper.

Only because of the limitation of prosecution over the past 5 years, the trademark obtained by the third people is no longer applicable to the prosecution of the right of name.

These improper malicious application behavior is also Qiao Danfang's emphasis in this series of lawsuits. His lawyer showed the whole process of Jordan's reputation in sports in Jordan's court.

The name of the company was originally named "the two factory of the daily necessities of the Chai Tai River in Jinjiang, Fujian province". None of the founders had the name of Jordan and the word "two".

But in 1991, when Jordan first led the team to win the NBA championship, he registered the "Dan bridge" trademark and renamed the name of the enterprise to Jordan sports in 2000.

In the more than 10 years, Jordan sports registered a series of trademarks closely related to Jordan's personal identity, including more than 60 phonetic alphabets, Chinese character trademarks, and more than 40 image trademarks.

In addition to the dynamic character of the image trademark, it is based on Jordan's competition photos, "No. 23" is its jersey number, and even in 1994-1995 years when Jordan retired from the game to play baseball, he applied for the registration of the Chinese character "Madan jok" and the image of the baseball image.

2005, again

The two sons' name "Markus Jordan" and "Jeffrey Jordan" are registered as trademarks.

Huang Hui and Cui Guobin, associate professor of Law School of Tsinghua University, argue that the law should provide more protection against such malicious registration, such as extending the prescription to 10 years, or giving a deadline like a well-known trademark.

"In 5 years, it is very easy to get over it, especially when the right person is a foreigner, and he may have known it for 5 years."

Cui Guobin said.

Who is Jordan?

The 10 cases of the Supreme Court were not covered for more than 5 years.

But Jordan sports advocates that Jordan does not have the right to name Jordan.

"His name is Michael Jordan, and Jordan is just the abbreviation of his plation.

There are more than 4000 Chinese names, Jordan, who do not agree with the plation of Jordan. However, the Chinese media reported that he did so, but they all had contextual context.

Jordan is not necessarily referring to him when he breaks away from this context.

We believe that the right to name must be the original name, or the pen name and plation name that I have used or approved, but in fact he has not said he is called Jordan himself.

Ma Dongxiao said.

In his opinion, what other people call and the right to name are two different things.

"For example, our neighbor has a bad boy called three fat people. Everyone knows who he is, but it doesn't mean he has the right to name" three fat men ".

It is presumption that he was named Jordan by means of media reports, and that this presumption could not be established in the case of disproof. "Jordan" is a fact presumption.

So Jordan is just a sign, belonging to the symbol of public domain.

Cui Guobin and Huang Hui both think that the number of Chinese people who are called Jordan is not important. As long as consumers can associate Michael Jordan with this name in specific contexts, they constitute infringement of their right to name.

"For example, the former Wang Yuewen v. Wang Yuewen case.

That person is also called Wang Yuewen, a Hebei farmer, not a famous writer, Wang Yuewen.

But in the book sales, deliberately through some propaganda misleading others think that Wang Yuewen, also constitutes infringement.

Cui Guobin said.

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The business jury also recognizes that the protection of the right of name is not limited to its original name. In reply, it should be protected according to the provisions of the trademark law. Whether it is a name or an alias, it should be based on the cognition of the Chinese public on the basis of cognition, and take the sole fixed relationship between the specific trademark words in the public cognition and the right of the person to be the only one to be established. The protection content and the scope of protection of the right of name shall be determined by considering the reputation of the right person, the well-known domain and the designated commodity of the specific trademark.

But in the end, they did not decide to support Jordan's proposal because they had differences in understanding the specific facts and Jordan.

In the more than 20 years of operation, Jordan said that the trademarks have been used continuously and widely, and the reputation accumulated in the process has produced some corresponding relations.

Because Jordan is the only correspondence between English surnames and Michael Jordan, if the business jury supports Jordan's request, it needs sufficient evidence to prove that the correspondence between Jordan's two character or its Chinese pinyin and the applicant's name is obviously stronger than that of Jordan's sports.

In Cui Guobin's opinion, this standard is not a problem, the key lies in the factual level, whether the lawyer can effectively give evidence, and whether the business jury's standard of admissibility and the distribution of burden of proof are reasonable.

During the trial, Qiao Danfang provided many copies.

The report shows that more than 1500 random surveys of 5 city dwellers in Beijing, Shanghai, Guangzhou, Chengdu and Changshu showed that 6 to 9 of the people would first associate themselves with Michael Jordan himself when they heard "Jordan".

However, the business jury considered that the market research organization was entrusted by Qiao Danfang, and the objectivity and authenticity of the report could not be guaranteed, so it was not adopted at that time.

Because Cui Guobin is so inappropriate, "although it is entrusted by one party, it is also a third party organization.

Unless there is evidence contrary to the problem, it should be accepted.

Otherwise, how many third parties will take the initiative to do the survey?

But he also believes that the object of the survey should not be a random selection of urban residents. If we go to Jordan sports store to randomly survey potential consumers, then the conclusion is more convincing.

It took 20 years. What if it infringed?

Qiao Danfang's appeal is to rename Jordan's sports and stop using his trademark.

In the court trial, the business jury introduced that the reason why Jordan did not support this request was not only the difference in correspondence between the right to name, but also because the use of Jordan series trademark in the 20 years had formed a relatively stable competition order.

Based on the trust of trademark authorization and confirmation system, Jordan sports invested a lot of money. Through years of production and operation, Jordan trademark has gained a high reputation in its main field, and the accumulated reputation and related interests should belong to the actual user of the trademark.

Jordan's views on sports are the same. Jordan's brand Air Jordan and Jordan brand, which are endorsed by Jordan, have obvious market segmentation.

The former pair of basketball shoes are basically above 1000 yuan, the latter is basically less than 400, consumers will not be mistaken.

A financial statement provided by them showed that in March 2012, sales volume increased by more than 16% compared with February, whether in dealer self owned stores or franchised stores, a total increase of 22% over the same period last year.

"This shows that consumers buy Jordan sports products mainly because of quality, price and other reasons, rather than Michael Jordan.

Otherwise, in February 2012, when he sued Jordan's sports case and caused such multimedia attention, we all knew that there was no relationship between the two. How did sales volume fail to increase significantly? "Ma Dongxiao said.

He told reporters that some time ago in Xiamen to see Jordan sports chief responsible person, the other side also lamented that if he first advocated that when the size of the enterprise was so small, it must be changed.

Now there are billions of sales in one year, and nearly 6000 stores in the country, involving 80 thousand people. How many families are eating behind is not so easy.

In Ma Dongxiao's view, the law belongs to the law and morality to morality.

"Jordan sports may have some unprofessional behavior when they start applying for these trademarks, or they can be easily misunderstood.

But after such a long time, many people who do not know Michael Jordan now approve of the brand.

Since the application for registration is lawful, the accumulated value of the brand accumulated over the years should also be protected by law. "

Cui Guobin did not believe that Jordan did not infringe upon the registration of sports, but partly recognized Ma Dongxiao's statement. "This is a question of value balance.

In the patent field, if the infringed party has invested a lot, the cost of stopping use is too high.

Then the court can not give the injunction while recognizing the infringement, and demand to pay the obligee certain cost.

It is also valuable for the Supreme Court to answer this question if it can be used in the field of trademark. "

But for Michael Jordan, as long as Jordan sports continues to use Jordan's name and series of trademarks, confusion and misunderstanding are unavoidable, which makes it difficult for him to accept.

"After all, those who are concerned about this case are few.

Even with a lot of media coverage, the following reader comments still show that many people think Jordan sports has something to do with Mr. Jordan.

A person close to Jordan's team said.