No 717 of(2008)Administrative Litigation, Appeal(Chinese version only)

Beijing Higher People's Court
administrative judgment
(2008) Gao Xing Zhong Zi No. 717

appellant (third person in the original trial) Liu Jianjia, male, Han, born on December 3, 1970, lives at No. 1, Industrial Avenue, Xinhua Street, Huadu District, Guangzhou City, Guangdong Province.
, is a lawyer of Beijing Shanggong Law Firm.
, is a lawyer of Beijing Mingji Law Firm.
The appellee (plaintiff in the original trial) Sony Ericsson Mobile Communications Products (China) Co., Ltd. is located on the 3rd and 4th floors of Block A, Wangjing Science and Technology Pioneer Park, Chaoyang District, Beijing.
legal representative Hideki Dick Komiyama, chairman.
, is a lawyer at Yongshen Law Firm in Beijing.
, is a lawyer of Yongshen Law Firm in Beijing.
The appellee (defendant in the original trial), the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce, has his domicile at No. 8, Sanlihe East Road, Xicheng District, Beijing.
legal representative Xu Ruibiao, director.
, is a cadre of the Trademark Review and Adjudication Board.
, appealed to the Beijing First Intermediate People's Court (2008) No. 196 Administrative Judgment of the First Intermediate People's Court (No. 196) due to a trademark administrative dispute. After accepting the case on November 17, 2008, the court formed a collegial panel according to law and held a public hearing on December 17, 2008. Zhao Xudong and Zhao Guohua, the entrusted agents of the appellant Liu Jianjia, and Li Jingbing and Zheng Yanling, the entrusted agents of the appellee Sony Ericsson Mobile Communications Products (China) Co., Ltd. (hereinafter referred to as Sony Ericsson (China) Company), attended the lawsuit. The appellee's Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board) was summoned by summons to apply in writing not to appear in court, and the court was absent from the trial according to law. The case is now closed.
On March 19, 2003, Liu Jianjia applied to the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office) for the registration of the "Sony Ericsson" trademark (hereinafter referred to as the disputed trademark). On August 7, 2004, the trademark was approved for registration, and the approved goods were category 9 DVD players, loudspeakers, speakers, telephones and other goods. The trademark registration number is 3492439.
On June 7, 2005, Sony Ericsson (China) filed an application for deregistration of the "Sony Ericsson" trademark (referred to as the disputed trademark). The main reason was: "Sony Ericsson" is a well-known trademark owned by Sony Ericsson (China) in China. Liu Jianjia's malicious registration of the disputed trademark will infringe the legitimate rights and interests of his company, and it violates the provisions of Article 10, Paragraph 1, Item (VIII) of the "the People's Republic of China Trademark Law" (referred to as the Trademark Law) and Article 5, Item (II) of the "the People's Republic of China Anti-Unfair Competition Law" (referred to as the Anti-Unfair Competition Law). On November 28, 2007, the Trademark Review and Adjudication Board issued Shang Ping Zi [2007] No. 11295 "Ruling on Trademark Dispute No. 3492439" Sony Ericsson "(referred to as Ruling No. 11295), ruling that the disputed trademark should be maintained.
Sony Ericsson (China) was dissatisfied and filed a lawsuit with the Beijing No. 1 Intermediate People's Court. The main reason is: 1. long before the date of the disputed trademark application, "Sony Ericsson" has become the well-known "Sony Ericsson" and The abbreviation of the "Sony Ericsson" trademark, and uniquely and definitely pointed to Sony Ericsson Group and its products including Sony Ericsson (China), it has been widely reported by various media and has a high influence among the relevant Chinese public. However, Liu Jianjia did not provide evidence to prove the source of his registered "Sony Ericsson" trademark. 2. Liu Jianjia's registration of the disputed trademark has obvious subjective malice, which is a malicious cybersquatting for the purpose of unfair competition and violates the principle of good faith. The registration and use of 3. disputed trademarks will cause consumers to confuse or misunderstand the source of goods, disrupt the fair market competition order, infringe on the interests of consumers, and also infringe on the interests and goodwill of Sony Ericsson (China), causing adverse effects. Request a judgment to revoke the decision No. 11295 of Shang Ping Zi, and the Trademark Review and Adjudication Board will make a ruling to revoke the disputed trademark.
Beijing No. 1 Intermediate People's Court held that the disputed trademark does not belong to the mark with other adverse effects as stipulated in Item (VIII) of Paragraph 1 of Article 10 of the Trademark Law. Other rulings made by the Trademark Review and Adjudication Board as stated by Sony Ericsson (China) should not affect this case. Accordingly, Sony Ericsson (China) Company's claim that the disputed trademark belongs to the mark with other adverse effects stipulated in Item (VIII) of Paragraph 1 of Article 10 of the Trademark Law lacks legal basis.
Sony Ericsson (China) has not submitted relevant evidence that can fully prove that "Sony Ericsson" has become a well-known trademark when applying for registration of the disputed trademark in accordance with the law, its claim that "Sony Ericsson" is an unregistered well-known trademark lacks factual basis.
can be seen from the contents of the web pages embodied in the (2005) Hu Hong Zheng Jing Zi No. 2301 and No. 2302 notarial certificates and (2007) Hu Huang Yi Zheng Jing Zi No. 5986 notarial certificates submitted by Sony Ericsson (China) Company at the evaluation stage, from the beginning of December 2002 until the disputed trademark application for registration, reports and comments on different models of "Sony Ericsson mobile phones" and other "Sony Ericsson" electronic products have appeared on many websites, and the producers of these products all point to "Sony Ericsson" or "Sony Ericsson (China) Company". From the perspective of Chinese language expression, "Sony Ericsson" is relatively cumbersome in calling. According to the language habit of widely using abbreviations (or abbreviations) in Chinese, it is very natural for the two companies or brands "Sony" and "Ericsson" to form their abbreviations. Through the above-mentioned content that continues to appear on the Internet, it can be further proved that in daily life, since the establishment of Sony Ericsson and Sony Ericsson (China) and the launch of their mobile phones and electronic products, the abbreviation "Sony Ericsson" has been used by relevant Chinese public, The media adopted and widely used, and this title has been perceived and unanimously recognized by consumers, and has become the accepted abbreviation of "Sony Ericsson, A unique correspondence is formed with it. Although Liu Jianjia tried to prove that there may be other registered trademarks containing the words "Sony Ericsson" in real life, it still could not prove that the "Sony Ericsson" trademark could make consumers realize that there are other "Sony Ericsson" brand products on mobile phones and related electronic products, so Liu Jianjia's claim is not supported by this court.
"Sony Ericsson" has been recognized and used by consumers and the media. It has the function of distinguishing different sources of goods and marking the quality of products. These actual use effects and influences naturally extend to Sony Ericsson and Sony Ericsson (China), and their essence is equivalent to their use. Therefore, although Sony Ericsson (China) recognized that it did not promote "Sony Ericsson" as its unregistered trademark, the joint effect of consumer recognition and media publicity has achieved the actual effect of Sony Ericsson (China) using the "Sony Ericsson" trademark, so "Sony Ericsson" has essentially become the trademark used by the company in China.
Sony Ericsson (China) was established in August 2002. Before the application for registration of the disputed trademark, that is, in March 2003, relevant media had already publicized and reported the "Sony Ericsson" mobile phones and other electronic products of Sony Ericsson and Sony Ericsson (China). Moreover, Sony Ericsson, jointly established by Sony and Ericsson, which have a high reputation in the industry, and Sony Ericsson (China), which was later established, are also more well-known than other general companies established at the same time. For Liu Jianjia, who has been engaged in the "electronics industry" for many years, the above situation should obviously be known. Therefore, Liu Jianjia, knowing the "Sony Ericsson" trademark owned by Sony Ericsson and Sony Ericsson (China) and its influence, still registered disputed trademarks on goods such as telephones, and his behavior is obviously improper. When Liu Jianjia applied for registration of the disputed trademark, Sony Ericsson (China) was established for only half a year, and its claim that it is impossible to have a high reputation lacks factual and legal basis.
The Beijing No. 1 Intermediate People's Court, in accordance with the provisions of Article 54, Item (II) of the the People's Republic of China Administrative Litigation Law, ruled: 1. revoke the Trademark Review and Adjudication Board's Ruling No. 11295; the 2. Trademark Review and Adjudication Board re-ruled on Sony Ericsson (China) Company's application for disputes over the "Sony Ericsson" trademark.
Liu Jianjia refused to accept the original judgment and appealed to the court, requesting to revoke the original judgment and to revise the judgment to maintain the Trademark Review and Adjudication Board's ruling No. 11295. The main reason is that it is not a fact that the original judgment of the 1. held that "Sony Ericsson" is an unregistered trademark of Sony Ericsson (China) and has used a certain influence. 1. Sony Ericsson (China) Company was established in Beijing, China in 2002. The company is a foreign-funded enterprise that does not have the production and sales capabilities. 2. Sony Ericsson (China) has not used the trademark stipulated by law for "Sony Ericsson. 3. "Sony Ericsson" is not an unregistered trademark of Sony Ericsson (China). 4. The appellant did not violate the principle of good faith and implemented improper means to preemptively register the trademark of Sony Ericsson (China). The application of Article 31 of the Trademark Law to the original judgment of the 2. as the basis for the judgment is an error of applicable law.
Sony Ericsson (China) Company and Trademark Review and Adjudication Board obey the original judgment.
After trial, it was found that on March 19, 2003, Liu Jianjia applied to the Trademark Office of the State Administration for Industry and Commerce for the registration of the "Sony Ericsson" trademark (that is, the disputed trademark). On August 7, 2004, the trademark was approved for registration. The approved products were category 9 DVD players, loudspeakers, loudspeakers, telephones and other products. The trademark registration number was 3492439.
On June 7, 2005, Sony Ericsson (China) filed an application for the cancellation of the registration of the disputed trademark to the Trademark Review and Adjudication Board. The main reason was: "Sony Ericsson" is a well-known trademark owned by it in China, and Liu Jianjia's malicious registration of the disputed trademark will infringe Sony Ericsson (China) The legitimate rights and interests of the company, and violate the provisions of Article 10, Paragraph 1, Item (VIII) of the Trademark Law and Article 5, Item (II) of the Anti-Unfair Competition Law. In support of its application for revocation, Sony Ericsson (China) submitted relevant evidence materials to the Trademark Review and Adjudication Board, including:
1. The introduction of Sony Ericsson Mobile Communications Company and Sony Ericsson (China) Company on the Internet mainly includes: Sony Ericsson Mobile Communications Company (hereinafter referred to as Sony Ericsson Company) was jointly founded by Ericsson Company and Sony Company in 2001; In March 2002, the first batch of cooperative products were launched. In 2002, Sony Ericsson Mobile Communications Company sold nearly 23 million mobile phones. In August 2002, Sony Ericsson (China) was established.
2, (2005) Hu Hong Zheng Jing Zi No. 2301 and No. 2302 notarial certificates,(2007) Hu Huang Yi Zheng Jing Zi No. 3747 and No. 5986 notarial certificates. (2005) The contents of the printed pages attached to Hu Hong Zheng Jing Zi No. 2301 and No. 2302 notarial certificates and (2007) Hu Huang Yi Zheng Jing Zi No. 5986 notarial certificates show that from the beginning of December 2002 until the application for registration of the disputed trademark, there have been more reports and comments on different types of mobile phones called "Sony Ericsson" and other "Sony Ericsson" electronic products on many websites. The producers of these products all point to "Sony Ericsson Company" or "Sony Ericsson (China) Company";(2007) The contents of the printed page attached to the notarial certificates No. 3747 and No. 5986 of Hu Huang Yi Zheng Jing Zi show that He Jie once served as the spokesperson for MP4 products for Guangzhou Sony Ericsson Digital Technology Co., Ltd., and some consumers mistakenly thought that He Jie was endorsing the products of "Sony Ericsson Company", which caused controversy.
3, (2004) Hu Huang Yi Zheng Jing Zi No. 11499, 11500 notarial certificates. The above notarial certificate notarized the issuance of the "Market Survey on the Recognition of the" Sony Ericsson "Brand" questionnaire and the statistical matters of the survey results. The survey results show that 100 respondents in Beijing and Shanghai all believe that the "Sony Ericsson" brand is owned by Sony Ericsson.
4. "HC Business Advertisement" published on October 1, 2004. The auction advertisement for the controversial trademark was published in the magazine. The reserve price was 2 million yuan and the contact person was Wang Sheng.
5. Shanghai Wanya Information Consulting Co., Ltd. issued its investigation report and recording materials on Liu Jianjia entrusted by Sony Ericsson (China).
On November 28, 2007, the Trademark Review and Adjudication Board made ruling No. 11295, which determined that 1. to the provisions of Item (VIII) of Paragraph 1 of Article 10 of the Trademark Law, signs with other adverse effects shall not be used as trademarks. The documentary evidence submitted by Sony Ericsson (China) is not enough to prove that "Sony Ericsson" is the abbreviation of "Sony Ericsson". Therefore, the disputed trademark "Sony Ericsson" should be a fictional vocabulary and has no standard meaning. At present, there is no reason to believe that the use of the disputed trademark in DVD players and other commodities will have a negative impact on the public interest and public order. Therefore, the disputed trademark does not belong to the mark stipulated in Article 10, paragraph 1, Item (VIII) of the Trademark Law.
2. in the evidence about the popularity of Sony Ericsson (China) company's "Sony Ericsson" trademark, evidence 2 was issued by Shanghai Wanya Information Consulting Co., Ltd. after issuing 228 questionnaires in Beijing and Shanghai. The rest of the evidence was taken from the Internet search. The above evidence is no matter from the degree of awareness of the trademark by the relevant public, or the duration, degree or geographical scope of the use or promotion of the trademark are not enough to prove that the trademark has been widely known and enjoyed a high reputation by the relevant public in China. Therefore, it is not enough to determine that the "Sony Ericsson" trademark of Sony Ericsson (China) has become a well-known trademark not registered in China before the disputed trademark application date, liu Jianjia's act of registering the disputed trademark did not constitute the situation of "copying, imitating or translating another person's well-known trademark that is not registered in China" as stipulated in the first paragraph of Article 13 of the Trademark Law.
3. Ericsson (China) Company's claim that the registration of the disputed trademark constitutes an act of unfair competition is reflected in the provisions of Article 31 of the Trademark Law, that is, whether Liu Jianjia constitutes "using improper means to preemptively register the trademark that has been used by others and has certain influence. As mentioned above, the evidence provided by Ericsson (China) cannot determine that the trademark "Sony Ericsson" is a trademark that has been used and has certain influence; in the evidence provided by Sony Ericsson (China) to prove that Liu Jianjia is malicious, Evidence 3 has nothing to do with this case; evidence 4 is the investigation report and audio recording materials of Liu Jianjia entrusted by Sony Ericsson (China) issued by Shanghai Wanya Information Consulting Co., Ltd., which belongs to audio-visual materials obtained by secret means. Evidence 5 is a trademark auction advertisement. If there is no other relevant evidence to support it, these evidences alone are not enough to prove that Liu Jianjia's registration of the disputed trademark violates the principle of good faith and is improper.
To sum up, the Trademark Review and Adjudication Board ruled that the disputed trademark should be maintained in accordance with the provisions of Article 43 of the Trademark Law.
During the trial of the original court, Sony Ericsson (China) also believed that "Sony Ericsson" was an unregistered well-known trademark that it had rights; the Trademark Review and Adjudication Board and Liu Jianjia had no objection to the aforementioned notarial certificate, but the authenticity of the relevant webpage content embodied in the notarial certificate was not recognized; Liu Jianjia believed that he had not accepted the relevant investigation of Shanghai Wanya Information Consulting Co., Ltd., and the recording material had nothing to do with it.
Liu Jianjia submitted supplementary evidence to the original court in support of his claim. Among them, supplementary evidence 1 was (2008) the notarial deed of Sui Zheng Nei Jing Zi No. 20309, which was notarized on March 6, 2008 when the third party's entrusted agent purchased Sony Ericsson mobile phone. The word "Sony Ericsson" did not appear on the copies of invoices, sales sheets, product photos and publicity sheets attached to the notarial deed. Supplementary evidence 2 is the detailed information inquiry form of trademark No. 1977714, which shows that on October 16, 2001, Langtian Gas Appliance Factory, dongfeng town City, Zhongshan City, applied for registration of the trademark "Sony Ericsson Soar" and made a preliminary examination and approval announcement on January 14, 2003. The approved commodities were water heaters, gas stoves, etc.
The court also found out that on September 10, 2008, the (2008) Guangdong Guangzhou Notary Public Certificate Neijing Zi No. 97690 issued by Guangzhou Notary Public Office of Guangzhou City, Guangdong Province stated that since October 2007, Sohu IT, Science and Technology Information Network, Beiqing Network, Pacific Computer Network, People's Network, etc. have published the following relevant contents: Lu Jiansheng, vice president of Sony Ericsson Group and head of China, said:... Sony Ericsson is a joint venture between Sony Group and Ericsson Group, ...... We are not Sony Ericsson, we are Sony Ericsson...; I ask everyone to call us Sony Ericsson or Sony Ericsson, not Sony Ericsson, etc.
Before the disputed trademark application for registration on March 12, 2003, none of Sony Ericsson (China)'s mobile phones were produced and sold in mainland China.
the above facts, there is ruling [2007] No. 11295 made by the Trademark Review and Adjudication Board. The disputed trademark file; Introduction of Sony Ericsson Mobile Communications Company and Sony Ericsson (China) Company on the Internet;(2005) Shanghai Hong Zheng Jing Zi No. 2301 and No. 2302 notarial certificates;(2007) Shanghai Huang Yi Zheng Jing Zi No. 3747 and 5986 notarial certificates; "HC Business Advertisement";(2004) Shanghai Huang Yi Zheng Jing Zi No. 11499 and 11500 Notary Certificates; Sony Ericsson (China) Company calls it the investigation report and recording data of visiting Liu Jianjia;(2008) Sui Zheng Nei Jing Zi No. 20309 Notary Certificate; "Sony Ericsson Soar" trademark detailed information inquiry form;(2008) Guangdong Sui Guang Zheng Nei Jing Zi No. 97690 notarial certificate; beijing Fangyuan Notary Public Office (2008) Beijing Fangyuan Nei Min Zheng Zi No. 11266 Notary Public Certificate and evidence such as parties' statements and court trial transcripts.
this court believes that: Article 5, Item (II) of the Anti-Unfair Competition Law stipulates that operators shall not use "unauthorized use of the unique name, packaging, and decoration of well-known goods, or use the name, packaging, and decoration similar to well-known goods. Confusion with other people's well-known products makes the purchaser mistakenly believe that it is the well-known product" and damages the behavior of competitors. Article 31 of the Trademark Law stipulates that an application for trademark registration shall not damage the existing prior rights of others, nor shall it preemptively register a trademark that has been used by others and has certain influence by improper means. The unique name of a well-known product is essentially a trademark that has been used and has a certain influence. Therefore, the registration of the disputed trademark proposed by Ericsson (China) constitutes an act specified in Item (II) of Article 5 of the Anti-Unfair Competition Law, which is reflected in the trademark law. Article 31 "Preemptively register a trademark that has been used by others and has a certain influence by improper means. Sony Ericsson (China) and Liu Jianjia have no objection to this.
According to Article 31 of the Trademark Law, a registered trademark refers to a trademark that has been used by others and has certain influence. Article 3 of the Regulations for the Implementation of the Trademark Law stipulates that the use of trademarks includes the use of trademarks on commodities, commodity packaging or containers, and commodity transaction documents, or the use of trademarks in advertising, exhibitions, and other commercial activities. Therefore, the registered trademark should be used by the registered person himself in commercial activities.
Sony Ericsson (China) Company claims that it has used "Sony Ericsson" is the reports and comments on different models of "Sony Ericsson" and other "Sony Ericsson" electronic products on many websites, and the producers of these products all point to "Sony Ericsson Company" or "Sony Ericsson (China) Company". However, these reports and comments were not made by Sony Ericsson (China). Sony Ericsson (China) did not conduct any commercial activities related to the production, sales and promotion of "Sony Ericsson" products before applying for registration of the disputed trademark. Sony Ericsson (China) also recognized this. In addition, as of October 2007, Sony Ericsson (China) did not agree that "Sony Ericsson" was the abbreviation of its company or the abbreviation of its mobile phones and electronic products. According to the provisions of the aforementioned trademark law and the regulations on the implementation of the trademark law, since Sony Ericsson (China) did not use "Sony Ericsson" as a trademark for commercial use, the abbreviation of "Sony Ericsson" in the original judgment was adopted and widely used by the relevant Chinese public and media, and this title has been perceived and unanimously recognized by the majority of consumers, becoming the recognized abbreviation of "Sony Ericsson, it has formed the only corresponding relationship and the'Sony Ericsson 'has been recognized and used by consumers and the media. It has the function of distinguishing different product sources and marking product quality. These actual use effects and influences are naturally related to Sony Ericsson and Sony Ericsson (China) companies, whose essence is equivalent to their use" lack of legal basis. Liu Jianjia mentioned that Sony Ericsson (China) did not use the word "Sony Ericsson" in the sense of trademark law, and its registered trademark in dispute does not constitute Article 31 of the Trademark Law, which stipulates that "no improper means shall be used by others and have certain influence." The proposition is established. The Trademark Review and Adjudication Board's decision that the evidence provided by Sony Ericsson (China) cannot determine that the "Sony Ericsson" trademark is a trademark that has been used and has certain influence is correct.
To sum up, the disputed trademark is not a mark with adverse effects, and Sony Ericsson (China) has not submitted sufficient evidence to prove that "Sony Ericsson" has become a well-known trademark when the disputed trademark is applied for registration, therefore, the decision of the Trademark Review and Adjudication Board that the disputed trademark does not belong to the mark specified in Item (VIII) of Paragraph 1 of Article 10 of the Trademark Law, and that Liu Jianjia's registration of the disputed trademark does not constitute the situation in Paragraph 1 of Article 13 of the Trademark Law has factual and legal basis.
Trademark Review and Adjudication Board [2007] No. 11295 ruled that the trial procedure is legal and that the facts and applicable laws are correct and should be maintained. The fact found in the original judgment and the error of the applicable law shall be revoked. In accordance with the provisions of Item (II) of Article 61 of the the People's Republic of China Administrative Procedure Law, the Court has decided as follows:
1. revoked the administrative judgment No. 196 of the Beijing No. 1 Intermediate People's Court (2008);
2. maintains the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce [2007] No. 11295 "Ruling on the Trademark Dispute No. 3492439" Sony Ericsson ".
1. is 100 yuan each, which will be borne by Sony Ericsson Mobile Communications Products (China) Co., Ltd. (the acceptance fee for the first instance case is 100 yuan; the acceptance fee for the second instance case is 100 yuan from the effective date of this judgment Pay within seven days).
This judgment is final.

Presiding Judge Zhang Bing
Judge Sharina
Acting Judge Jiao Yan
March 12, 2009
Clerk Zhang Jianqiu