A few days ago, Qualcomm Incorporated was sued by Shanghai Gotop
Semiconductor Ltd. before Shanghai High Court for trademark
infringement and unfair competition regarding the Chinese character
trademark " 高通". Qualcomm was asked for RMB
100 million damages. This is another trademark dispute between a
domestic and foreign company seeking tremendous damages after the
fight between Apple Inc. and Shenzhen Proview Scitech regarding the
trademark "IPAD" was ended.
Qualcomm was translated into Chinese as "高通
", pronounced as "gao tong", which is identical to
the Chinese name of the plaintiff, Shanghai Gotop.
The registration information of Shanghai Administration for
Industry & Commerce shows that Shanghai Gotop Semiconductor
Ltd. was incorporated on June 6, 1996. According to the database of
the Trademark Office, Shanghai Gotop has five registered
trademarks* containing the Chinese characters "Gao Tong",
filed from August 8, 1992 to January 12, 2004, covering image
transmission, phonetic telecommunication, advertisement, computer
database, information transmission, computer telecommunication,
Regarding the count of trademark infringement, it seems that the
products/services covered by the five registered trademarks of the
plaintiff Shanghai Gotop overlap or are similar to the business of
Qualcomm Incorporated in China, so the latter may likely infringe
upon some of these trademarks. However, among the up to 500
registered trademarks* and trademark applications filed by Qualcomm
Incorporated in China, there are only 2 registered trademarks and 4
pending applications containing the two Chinese characters
"Gao Tong". It looks not that difficult for Qualcomm to
select other trademarks from its trademark pool if the court orders
Qualcomm infringe upon the plaintiff's trademarks, without
affording huge royalties.
As to the unfair competition count, according to the trademark
laws and regulations, as well as the decision of H.J. Heinz
Company, the plaintiff shall request the court to determine its
trademarks are well-known trademarks by proving with evidence that
its "Gao Tong" trademarks has been well known and itself
has been well known at the time that Qualcomm Incorporated used the
two Chinese characters in its Chinese name. Also, the plaintiff
still has to prove that the two companies target same consumers or
clients, thus use of the two Chinese characters in its Chinese name
by Qualcomm Incorporate would have misled the relevant public to
believe the correlation between them.
As to the claim of 100 million damages, the plaintiff has burden
to prove that profits made by the defendant or the losses suffered
by the plaintiff during the period of trademark infringement are
close or equal to this amount. Otherwise, if the infringement is
concluded, the court shall discretionally decide a number according
to the trademark law in consideration of the nature the trademarks,
willfulness of the defendant, extent and activities of the
infringement activities, as well as the necessary reasonable
expenses the plaintiff spends for the lawsuit.
We will be paying attention to the development of this case.
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