On 26 September 2023 the Supreme People's Court of China issued a final judgment finding that Jiangxi Xinbailun Lingpao Sporting Goods Co Ltd and Guangzhou Xinbailun Lingpao Sporting Goods Co Ltd (collectively ‘Lingpao’) had infringed the iconic ‘N’ trademark of New Balance and the trade dress of New Balance Trading (China) Co Ltd, a subsidiary of New Balance, and had thus committed acts of trademark infringement and unfair competition.

Precis: The ruling in a civil suit against Wuxi Smile IoT Ltd establishes that, when considering whether modified genuine products constitute trademark infringement, whether the alleged acts are detrimental to a trademark owner’s legitimate rights is the key issue.

During the year 2020, some interesting trademark cases were adjudicated which showcases that the level of protection of trademark rights in China is constantly rising. Most of the judgments were rendered by the Beijing IP Court and the Beijing High Court, in prosecution disputes handled by the trademark administration, i.e., the China Trademark Office (CTMO) and the Trademark Review & Adjudication Board (TRAB) replaced by the China National Intellectual Property Administration (CNIPA) after the recent administrative reshuffling.  Other civil infringement cases illustrate the raising level of financial compensation awarded by the courts, who do not hesitate to use punitive damages and endorse contractual damages.

Unlike European and American Supreme Courts, the Chinese Supreme Court (SPC) reexamines cases not only on points of law but also on facts. In a way, it constitutes a third degree of jurisdiction, after the court of appeal (the High Court of the Province). This entails a very heavy workload every year. In 2019, the SPC issued more than 500 decisions (judgments and rulings), mostly relating to trademark prosecution matters.

A decision rendered by the Putuo District Court of Shanghai in October 2022 has been freshly published by IPHouse, bringing it centre stage once more. In this, court dismissed a trademark infringement suit and partially upheld the defendant’s counterclaim by awarding 70,000 yuan in attorney fees. This decision is a crucial one because it highlights that the courts are paying increasingly close attention to plaintiffs’ subjective intentions.

In a recently surfaced administrative decision, the Beijing Intellectual Property Court has sided with the applicant for a defensive trademark, finding no foul play in the applicant’s conduct. Rendered on 26 December 2022, the decision considered whether the defensive trademark registration constituted a bad-faith application for a trademark that was not intended for use, which is banned by Article 4 of the 2019 China Trademark Law.

Article 10 of China’s Trademark Law enumerates circumstances where a trademark application will be ex officio refused by the China National Intellectual Property Administration (CNIPA). These circumstances are known as absolute grounds. Article 10.1.2 prohibits inter alia a sign, which is identical with or similar to the national flag of a foreign country, from being used (and registered) as a trademark, unless the consent of the government of that country is obtained.

Article 10.2 of China’s Trademark Law sets forth that a foreign geographic name known to the public shall not be used as a trademark, unless such name has other meaning.

On 14th June 2022, the Beijing High Court rendered the final decision in a trademark dispute administrative retrial proceeding surrounding the registration of a disputed mark “ ”, featuring stylized “M & MONALISA” in class 11. The retrial court revoked the decisions of the trial court and the court of appeal, upholding the TRAB decision that partially revoked the registration of the disputed mark. The retrial decision puts an end to a decade-long trademark dispute that went through the TRAB procedure, two instances of court proceeding, a very rare procuratorial protest of the Supreme People’s Procuratorate and a retrial proceeding, exhausting almost every possible remedy available in the toolbox.

Based in Switzerland, LVMH Swiss Manufactures SA (‘LVMH Swiss’) is a wholly owned subsidiary of the LVMH Group, offering luxury watches reflecting Swiss watchmaking excellence. TAG Heuer is a watchmaking pioneer and one of the eight brands under LVMH’s Houses in the watches and jewellery sector.

On 8 November 2023 the Hubei High Court issued a judgment in the long-running Michelin saga, upholding the first-instance decision and clarifying some interesting aspects about well-known status of trademarks in China (2022 E Zhi Min Zhong no 190).