China: CCPIT Patent And Trademark Law Office Wins In The Supreme People's Court In The Administrative Re-Trial Case On Review Of Opposition To Trademark "DYNEEMA & DEVICE"

Last Updated: 7 August 2019
Article by Chengyan Zhao and Gang Hu

Recently, DSM IP ASSETS B.V. (hereinafter referred as DSM B.V.) represented by CCPIT Patent and Trademark Law Office vs. the Trademark Review and Adjudication Board of the State Administration for Industry & Commerce, the third party LOU Yuebin, LOU Yuequn, LOU Zhaofa, LAI Junzhe, the administrative retrial case on review of opposition to trademark "DYNEEMA & DEVICE" (hereinafter referred to as the opposed mark), has been judged by the Supreme People's Court (SPC), wherein the SPC overrules the second instance decision by Beijing High People's Court, the first instance decision by the First Intermediate People's Court of Beijing, and the review decision by the Trademark Review and Adjudication Board (TRAB). It is decided that the opposed mark constitutes a similar mark in respect of similar goods with the cited mark on "fishing tackles", and the opposed mark infringes the prior copyright of other. Therefore, the application of the opposed mark violates Articles 28 and 31 of the 2001 Chinese Trademark Law, and it should not be approved for registration, which has fully supported DSM B.V's requests for retrial.

With more than a hundred years of history, KONINKLIJKE DSM N.V. is active in the business fields of health, nutrition and materials manufacturing worldwide. The retrial petitioner DSM B.V. is the global intellectual property custodian of KONINKLIJKE DSM N.V. On June 14, 2004, LOU Yuebin, LOU Yuequn, LOU Zhaofa and LAI Junzhe filed for the trademark App. No. No. 4115813 for "DYNEEMA & DEVICE". On October 14, 2007, it was published on "games; toys; card games; machines for physical exercises; fishing tackle; balls for sports; gloves for games; grippers; Christmas tree decorations (except lighting items and candy); exercise equipment" in class 28. DSM B.V. believed that the opposed mark constituted a similar mark to their trademark IR No. 666717 for "DYNEEMA", which was approved for protection in China on "semi-processed plastic substances in the form of fibres and threads" in class 17, and the opposed mark infringed the prior copyright of "DYNEEMA & DEVICE" which was a combination of text and graphic. However, the opposition, the review on opposition, as well as the first instance and the second instance administrative litigation proceedings against the opposed mark, lodged by DSM B.V., were not supported by the Trademark Office, the Trademark Review and Adjudication Board, the First Intermediate People's Court of Beijing or the Beijing High People's Court.

Facing the unfavorable final decision, the attorneys of this case, HU Gang, ZHAO Chengyan and others carefully analyzed the relevant legal issues, and believed that the use of the opposed mark on "fishing tackles" could easily cause confusions among consumers, so the opposed mark and the cited mark should be considered as a similar marks in respect of similar goods. And it's inappropriate to rule the great amount of evidences in this case as insufficient to prove that DSM B.V. was an interested party to the prior copyright. Accordingly, in 2014, with all-round argument preparation and comprehensive evidence collection, they represented DSM B.V. to file a retrial petition before the SPC. In December 2017, the SPC heard the retrial case, and HU Gang and ZHAO Chengyan participated in the hearing on behalf of DSM B.V.

Upon examination, the SPC holds, the evidences provided by DSM B.V. show that the fiber products covered by the cited mark, in actual use, were widely used in special materials, including bulletproof products, the production of fishing tackles, and were famous as high quality raw materials for fishery products such as fishing nets and trawls, fishing lines, and they enjoyed high fame among fishery material industries and fishing fans. Thus, these goods and "fishing tackles" covered by the cited mark are highly duplicative in terms of nature, usage, sales channel, target consumer and other aspects. In the meanwhile, relevant evidences and common sense of life also show that as raw material of fishery products, the performance of fiber products determines the performance of fishing gears and fishing tackles, and that by introducing the source characteristics of fiber materials or by marking the source of raw materials on the corresponding products, it is the usual practice to publicize and promote fishing tackles. They are goods of specific connections, that tend to cause confusions among the public as of the origins of the goods or mislead consumers to believe that there are certain connections between them. Therefore, "fishing tackles" are similar to "semi-processed plastic substances in the form of fibres and threads" covered by the cited mark, and the opposed mark on "fishing tackles" violates Article 28 of the Chinese Trademark Law.

At the same time, the SPC also believes that even if it cannot be concluded that DSM B.V. is the copyright owner of the work of "DYNEEMA & DEVICE" based on the available evidences, DSM B.V. has at least the exclusive rights in use of "DYNEEMA & DEVICE" as a trademark. As the custodian of the intellectual property rights of KONINKLIJKE DSM N.V., DSM B.V. has the rights, as an interested party, to claim that the opposed mark violates the prior copyright, in accordance with Article 31 of the Chinese Trademark Law. In view of the fact that the opposed mark is exact identical to the prior created and published work, and that the third party has not given any reasonable explanation in this regard, the opposed mark is an unauthorized copy of the work of other's, in violation of the regulations on the infringement of prior rights, in accordance with Article 31 of the Chinese Trademark Law.

It's been fifteen years from the very start of the opposition procedure of this case in 2004 to the end of the retrial procedure. This case is one of the typical challenging cases with confirmed results, among the trademark administrative litigation retrial cases handled by CCPIT Patent and Trademark Law Office. During the process of retrial, the opposed mark has been assigned to a new company established by LOU Yuebin and others, and the company has re-filed the word marks for "DYNEEMA" and etc. on various fishing goods. With complete success of this administrative retrial case, DSM B.V. has cleared the obstacles to safeguard and protect their trademark rights in China and can lodge complaints and further crack down effectively on infringement activities of their trademark rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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