China: "乔丹"商标纠纷硝烟再起,耐克公司却成被告(商标侵权案件)

Last Updated: 30 April 2018
Article by HFG Law Firm

(图片来源于中国商标网)

2018 年3 月8 日,晋江法院知识产权庭公开开 庭审理了原告乔丹体育股份有限公司诉被告耐克体 育(中国)有限公司、耐克商业(中国)有限公司(两 被告合称为"耐克公司"),将原告享有注册商标专用 权的"乔丹"标识用于竞价排名的行为,构成了侵害 商标权及不正当竞争纠纷,并且要求被告立即停止侵 权,公开赔礼道歉,赔偿原告损失及合理支出30 万 元。

原告乔丹体育2000 年成立于福建晋江,是一家 体育用品生产商,其商标的主要形象为美国篮球明星 乔丹跃起扣篮,但乔丹体育与美国的NBA 篮球运动 员迈克尔"乔丹并无关联,乔丹体育的品牌也并非属于 耐克旗下。

两被告耐克公司正式成立于1972 年,由比尔"鲍 尔曼和校友菲利浦"奈特共同创立,总部位于美国俄勒 冈州Beaverton,是全球著名的体育用品制造商。美 国NBA 篮球明星乔丹与被告耐克公司已长期合作, 合作最早可追溯至1984 年,乔丹在耐克公司签署了 他的的第一份商业广告协议。

自2002 年起, 被告耐克公司就多次对于 "QIAODAN"、"乔丹"等商标向中国商标局提出异 议,主张乔丹的姓名权受到侵害,但相关主张并未获 得支持。2012 年,乔丹在上海法院起诉乔丹体育侵 犯其商标权、姓名权,要求乔丹体育停止侵权并撤销 相关注册商标,但仍被商评委予以驳回。商评委的主 要观点认为,"乔丹"并非篮球运动员Michael Jordan 的姓名,乔丹体育的商标注册行为并不侵犯 "乔丹"的姓名权。

多年之后,同样是商标,双方再起纠纷。只不过 此次是乔丹体育坐在原告席上,主张被告耐克公司擅 自将原告享有注册商标专用权的"乔丹"标识用于竞 价排名,该行为属于在相同商品上擅自使用与原告注 册商标相同的商标,侵害商标权及构成不正当竞争行 为,要求被告停止侵权,赔礼道歉,并赔偿原告损失 及合理费用支出30 万元。

被告耐克公司辩称,其没有将相关标识用于官网, 仅是将相关的表述用作"关键词",便于用户在搜索 关键词时找到相关内容,因此原告的上述主张不成立。

本案并未当庭宣判。

HFG 评论】

在"乔丹"商标是否侵犯乔丹姓名权的问题上,可以参考2017 年最高院公布的《关于审理商标授权确权 行政案件若干问题的规定》第20 条:当事人主张诉争商标损害其姓名权,如果相关公众认为该商标标志指代 了该自然人,容易认为标记有该商标的商品系经过该自然人许可或者与该自然人存在特定联系的,人民法院应 当认定该商标损害了该自然人的姓名权。

该条蕴含的精神已经在(2016)最高法行再27 号案中有所体现。实质上民法上的"姓名权"属于人格权, 而与体现为商标等蕴含巨大商业价值的"名人姓名权"并不相同。法院在适用商标法"在先权利"条款时所用 的姓名权,准确而言应为名人姓名权。

此外,关于将他人注册商标作为搜索关键词(竞价排名)是否构成商标侵权问题。法院一般会对相关标识 是否构成商标使用进行认定,如不构成的情况下,则违反了诚实信用原则,仍可能构成不正当竞争。上海高院 在"东莞市国安票务有限公司与上海携程商务有限公司侵害商标权及不正当竞争纠纷"中,认为被告的设置关 键词的行为构成商标侵权,主要有两点:1.构成商标意义上的使用;2.被告提供的服务类别与商标核准服务类 别构成相同或类似。天津高院在"商机在线(北京)网络技术有限公司与天津市意典美闻食品有限公司,北京 百度网讯科技有限公司、百度在线(北京)网络技术公司、百度时代网络技术(北京)有限公司侵害商标权及 不正当竞争纠纷"中,认为被告不构成商业标识意义上的使用,也不足以导致混淆,因此不构成商标侵权。但 被告将商标在百度网站的推广链接中,作为搜索关键词使用的行为,违反了诚实信用原则,构成对原告的不正 当竞争行为。

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions