China: Corresponding Association Between English Commercial Sign And Chinese Equivalent

Last Updated: 2 November 2015
Article by Jason Wang and Yan Zhang

A common question regarding English commercial signs, such as trademarks, personal names, or trade names, is how to protect their Chinese equivalent. On the one hand, the holder of the English commercial sign failed to select the Chinese equivalent for some reasons, or failed to have it registered as a trademark in a timely matter. On the other hand, the holder may have used the Chinese equivalent together with the English mark in commerce, or have used the Chinese equivalent passively. For instance, media reports use the Chinese equivalent to refer to the English commercial sign and its holder, the public and users also give some common Chinese names to the English commercial sign, and third parties like previous distributors of the holder use both the English mark and the Chinese equivalent to refer to the holder in commercial activities. Under these circumstances, for those third parties registering the Chinese equivalent as a trademark without authorization or using those commercial signs in commerce, how could the holders of English commercial sign prove the corresponding association between the English commercial sign and the Chinese equivalent? This article summarizes with case studies and provides practical advice from actual experiences.

1. Corresponding association affirmed

Scenario 1: The Chinese equivalent is deemed similar to the prior English mark on identical or similar goods and services. In the LAND ROVER invalidation case, both the first and second instance courts held as follows: LU HU in Chinese has been widely used by media reports to refer to the LAND ROVER vehicle in China before the application date of the disputed trademark. Though not clearly indicating to be an active commercial promotion made by the holder of BMW, these media reports and comments can prove that LU HU in Chinese and LAND ROVER refer to the same goods and used in commerce. The interview of the director of BMW also showed that BMW explicitly used LU HU in Chinese to refer to LAND ROVER, which was an active use of the trademark LU HU in Chinese. Though LU HU in Chinese was not the only equivalent translation of LAND ROVER, it was a fact that LU HU in Chinese is the Chinese mark of the LAND ROVER vehicle and has been previously used by BMW. 1 In the CANON opposition case, the Trademark Review and Adjudication Board (TRAB) of the State Administration for Industry and Commerce Trademark Review (SAIC) as well as the first and second instance courts held as follows: CANON, together with JIA NENG in Chinese, formed a unique corresponding association after being promoted and used for quite a long time. 2 In the WARBRUG PINCUS invalidation case, both the TRAB and the courts held as follows: HUA PING in Chinese, together with WARBRUG PINCUS, formed a close corresponding association after being used in financial field by the registrant Warbrug Pincus & Co. 3 In the FREDDIE MAC opposition case, both the TRAB and the courts held as follows: Being one of the Chinese translations of the FREDDIE MAC mark, FANG DI MEI in Chinese has established a corresponding association with FREDDIE MAC in the field of mortgage loans. 4 In the WINNIE THE POOH invalidation case, both the TRAB and first instance court held that XIAO XIONG WEI NI in Chinese has formed a unique corresponding association with the trademark WINNIE THE POOH owned by Disney Enterprise Inc. 5

Scenario 2: The Chinese equivalent is deemed similar to the prior English mark in one Class involved, as the English mark has established a corresponding association with the Chinese equivalent in another Class. In the MICHELIN opposition case, the courts held as follows: In addition to the cited mark MICHELIN (Class 25), the cited mark MI QI LIN in Chinese (Class 12) has been extensively used and enjoyed a high reputation in the tire industry in China, and the consumers were likely to associate MICHELIN with MI QI LIN in Chinese. Though MICHELIN was sometimes translated into MI SHI LIN in Chinese, however, MI QI LIN in Chinese associated with MICHELIN of the opponent Compagnie Generale Des Etablissements Michelin was more commonly used. Thus, the opposed mark MI QI LIN in Chinese and MI QI LIN and design (Class 25) shall be deemed similar to the frequently used transliteration of MICHELIN (Class 25). 6 In the PORTS INTERNATIONAL opposition case, both the TRAB and the courts held as follows: Both the cited mark 1 PORTS INTERNATIONAL (Subclass 2509) and the opposed mark BAO ZI in Chinese and BAOZI and design covered socks (Subclass 2509), and the registrant of the cited mark 1 owned the cited mark 2 BAO ZI in Chinese covering clothing (Subclass 2501) as well. Based on the practice at that time, socks and clothes under Class 25 did not constitute similar. Therefore, the cited mark PORTS INTERNATIONAL (Subclass 2509), rather than the cited mark BAO ZI in Chinese (Subclass 2501), was used to compare with the opposed mark. Namely, considering the registrant of the cited mark PORTS INTERNATIONAL covering socks owns the other cited mark BAO ZI in Chinese as well, and the cited mark PORTS INTERNATIONAL can be commonly pronounced as BAO ZI in Chinese by the Chinese public, the opposed mark BAO ZI in Chinese shall be deemed as the common transliteration of PORTS INTERNATIONAL. 7 In the HARLEY trademark infringement case, Beijing Second Intermediate Court held as follows: HA LEI in Chinese was recognized by the public to refer to the trademark holder of HARLEY-DAVIDSON and its goods of motorcycles (Class 12), and shall be deemed as the corresponding Chinese transliteration of the HARLEY mark on motorcycles maintenance and repair services (Class 37). 8

Scenario 3: The Chinese equivalent constitutes the "translation" of the English well-known mark. Article 13 of the Chinese Trademark Law provides that translation of a well-known mark involves the corresponding association between the Chinese equivalent and the English mark. In the SOTHEBY'S trademark infringement case, Beijing Second Intermediate Court, Beijing High Court and China Supreme Court held as follows: SOTHEBY'S, as an unregistered mark, was recognized as well-known on auction services, and SU FU BI in Chinese was deemed as the Chinese transliteration thereof. 9 In the RITZ CARLTON invalidation case, the courts held as follows: RITZ CARLTON was recognized as well-known on hotel services, and LI ZI KA ER DUN in Chinese was a Chinese translation of RITZ CARLTON widely adopted by Chinese media. Thus, the disputed mark LI ZI KA ER DUN in Chinese designated on real estate services was a translation of RITZ CARLTON. 10

Scenario 4: The English commercial sign constitutes the prior right of celebrity name for its corresponding Chinese equivalent. Rule 5.3 of the Trademark Adjudication Standard promulgated by the CTMO and the TRAB provided that the disputed trademark being identical to prior celebrity name refers to using identical words with other's name or its translation, which refers to the holder of the name in respect of public awareness. Rule 17 of the Guidelines of Beijing High Court for Hearing Administrative Cases on Trademark Granting and Determination provided that those signs which can establish corresponding association with particular natural person shall be deemed as names of this natural person. Rule 15 of Provisions of China Supreme Court on Several Issues concerning the Trial of Administrative Cases Involving the Granting and Determination of Trademark Right (DRAFT for Comment) provided as follows: Where an interested party claims that the disputed trademark infringes upon his name right, if the relevant public believes said name refers to said natural person, and the relevant public tends to believe that the goods marked with said name are licensed by or have other specific associations with the natural person, the court may deem that said disputed trademark infringes upon the name right of said natural person. In the GIOGRIO ARMANI invalidation case, both the TRAB and the courts held as follows: Fashion designer Giorgio Armani enjoyed a high reputation in the clothing industry, and its Chinese translation QIAO ZHI A MA NI in Chinese enjoyed a high reputation as well in China. Other Chinese translations of GIORGIO ARMANI were not enough to overrule the above-mentioned fact. 11

Scenario 5: The English commercial sign constitutes prior right of trade name for its corresponding Chinese equivalent. This situation includes identical English trademark and English trade name both constituting corresponding association with the Chinese equivalent. In the RUHOF trademark infringement case, both Beijing Second Intermediate Court and Beijing High Court held as follows: The trademark RUHOF owned by The Ruhof Corporation and the defendant's trademark LU WO FU in Chinese were phonetically similar. Being the plaintiff's general distributor in China, the defendant widely used RUHOF and LU WO FU in Chinese as trademarks to refer to the plaintiff in promotion activities. By the product sales and large amount of advertisement, the relevant public can associate RUHOF with LU WO FU in Chinese, and was likely to believe that goods using the LU WO FU in Chinese originated from the plaintiff. Therefore, use of the LU WO FU in Chinese trademark after the termination of its distribution relationship was likely to mislead the relevant public and the consumers into believing that the goods were associated with the plaintiff. 12 In the LEROY SOMER trademark infringement case, both Fujian High Court and China Supreme Court held as follows: The trade name and trademark LEROY SOMER of the plaintiff Leroy Somer, which enjoyed a high reputation in electronic machinery industry, have constituted the corresponding association with its Chinese equivalent LI LAI SEN MA in Chinese. 13 In the GOOGLE trademark infringement case, Google launched its Chinese name GU GE in Chinese on April 12, 2006, with press release available at 15:05 that day, and the defendant filed the application for trade name of the same Chinese characters at 15:50 on the same day. The courts held as follows: GU GE in Chinese shall be deemed as the corresponding Chinese translation of GOOGLE as the trade name, and the defendant's trade name GU GE in Chinese shall be changed. 14

2. Corresponding association denied

Scenario 1: Evidence fails to establish the corresponding association between the English commercial sign and its Chinese equivalent before the application date of the disputed mark or the date of first use of the accused infringing mark. In the RANDOM HOUSE opposition case, both the TRAB and the first instance court held that most evidence submitted was later than the application date of the opposed mark LAN DENG in Chinese and the evidence failed to prove the establishment of the sole and corresponding association between RANDOM HOUSE and LAN DENG in Chinese. 15 In the DELL trademark infringement case, Beijing First Intermediate Court held as follows: The first time China media used DAI ER in Chinese in mainland China referring to the plaintiff was in the advertisement of Dell Inc. in 1996, but most of the reports used DELL rather than DAI ER in Chinese. Those institutions providing after-sale services for the plaintiff in China also used the name DE ER in Chinese at that time. Fortune magazine translated DELL into DE ER in Chinese in 1999. The information of plaintiff's registered trademark DELL showed that Dell Inc. was translated as DI ER Inc. in Chinese in 1992 and DE ER Inc. in Chinese in 1996. The relevant dictionaries translated DELL into DE ER in Chinese and variant version of DAI ER in Chinese. Therefore, evidence failed to show DAI ER in Chinese is the only translation of DELL. 16

Scenario 2: The holder of the English commercial sign once expressly denied the corresponding Chinese equivalent as its trademark, therefore the holder has no real intention to use the Chinese equivalent as their trademark. Accordingly, the corresponding association between the English trademark and its Chinese equivalent breaks there. In the VIAGRA trademark infringement case, Pfizer Pharmaceuticals Limited, as the Chinese subsidiary of the plaintiff Pfizer Inc., alleged in the Attorney Statement that the official name of the medicine VIAGRA was WAN AI KE in Chinese. Beijing First Intermediate Court, Beijing High Court and China Supreme Court held as follows: The media reports, where WEI GE in Chinese was used to refer to VIAGRA, cannot show the real intention of the plaintiff. Therefore, WEI GE in Chinese did not constitute the corresponding association with VIAGRA. 17 In the SONY ERICSSON invalidation case, the vice president and executive in China of Sony Ericsson stated for many times that SUO AI in Chinese as SONY ERICSSON's unofficial abbreviation is unacceptable. Based on that, the TRAB, the first and second instance courts and China Supreme Court held as follows: The applicant Sony Ericsson Mobile Communication Products (China) Co. Ltd. did not have any intention or action to use SUO AI in Chinese as its trademark before the application date of the disputed trademark. Thus, the relevant media reports could not create civil rights and interest which could be protected under the law. 18

Scenario 3: The corresponding association is partially affirmed, but the Chinese equivalent still cannot solely or explicitly refer to the holder. In the BRITNEY SPEARS opposition case, both the TRAB and the first instance court held as follows: The current evidence cannot prove that the sole corresponding association has been established between BRITNEY and the opponent, the American singer Britney Spears, among the relevant public, because the opponent was mostly referred to as BU LAN NI " SI BI ER SI in Chinese or XIAO TIAN TIAN BU LAN NI in Chinese or English names, and BRITNEY was a common name in western countries. 19 In the MICHAEL JORDAN invalidation case, both the TRAB and the courts held as follows: Even if MICHAEL JORDAN was translated into MAI KE " QIAO DAN in Chinese, QIAO DAN in Chinese contained in the disputed mark did not exclusively associate with JORDAN, and JORDAN is a common family name instead of a full name. Therefore, the evidence failed to prove QIAO DAN in Chinese certainly referred to MICHAEL JORDAN and MAI KE " QIAO DAN in Chinese. 20 The above mentioned situation raised a controversial issue on the degree of corresponding association between the English commercial sign and the Chinese equivalent, namely, partial association, close association, or exclusive association. The fundamental determination standard shall be the awareness of the relevant public and standard of proof of the high degree of probability. However, relatively large room of discretion does exist for this standard per se.

3. Corresponding association affirmed in one case but denied in another case

In the LAFITE invalidation case, the courts held as follows: Before the application date of the disputed trademark, there are only a small amount of third party media reports about the trademark LAFITE or CHATEAU LAFITE ROTHSCHILD of the petitioner of the dispute, Chateau Lafite Rothschild, and there are fewer reports regarding the combined use of Chateau Lafite Rothschild with LAI FEI in Chinese. Therefore, no evidence showed LA FEI or LA FEI ER has established the corresponding association with LAFITE. 21 However, in the LAFITE trademark infringement case, other courts held as follows: LA FEI in Chinese was a direct Chinese transliteration of LAFITE. The plaintiff Chateau Lafite Rothschild named their wine products after LA FEI in Chinese, and used this name on their website and product promotion. In addition, those Chinese media reports referred LA FEI in Chinese to LAFITE. No evidence showed that the LAFITE wine products had used other Chinese names except for LA FEI in Chinese. Therefore, LA FEI in Chinese has the exclusive association with LAFITE wine products. 22

The two judgments of LAFITE cases were completely different. The key issue here is the different time points required for the evidence: In the invalidation case, the evidence is prior to the application date (2000) of the disputed mark; in the trademark infringement case, the evidence is prior to the date of first use (2010) of the accused Chinese mark.

4. Summary and recommendations

Based on court decisions, the elements for establishing the corresponding association between the English commercial sign and the Chinese equivalent include the following five aspects. First, sufficient evidence shall show the English commercial sign enjoys relatively high fame, and the corresponding association between the English commercial sign and the Chinese equivalent has been established. Second, the existence of several Chinese translations for the English commercial sign will not affect the establishment of a corresponding association between the major Chinese translation and the English commercial sign. Those cases include LAND ROVER, MICHELIN, RITZ CARLTON and GIOGRIO AMANI. In the SOTHEBY'S case, China Supreme Court held as follows: It is very common that an English mark corresponds to several Chinese translations. Some of the Chinese media reports used SUO SI BI in Chinese to refer to the company and the relevant auctions or goods. However, this cannot come to the conclusion that the corresponding association between SU FU BI in Chinese and the SOTHEBY'S is not established. Third, no matter what "active use" by the holder of the English commercial sign or "passive use" by the media, the public or third parties, the key issue is whether the corresponding association between the Chinese equivalent and the English commercial sign has been established. In the GUANG YUN GONG BING in Chinese case, China Supreme Court held as follows: Whether a sign may become a trademark, it does not lie in whether such sign is in active use or passive use. Instead, it lies in whether the corresponding association between the producer and the goods using the mark has been established. 23 Fourth, the attitude of the holder of the English commercial sign towards the Chinese equivalent has direct influence on the corresponding association. The essential function of trademark lies in distinguishing the sources. If the holder of the English commercial sign has no intention to accept the awareness of the general public, then the Chinese equivalent and the English commercial sign cannot establish the corresponding association in terms of legal effect, like the VIAGRA case and the SONY ERICSSON case. In the GUANG YUN GONG BING in Chinese case, China Supreme Court held as follows: The right and interest of trademark pertained to private right. Based on the principle of autonomy of private law and the private right, the trademark holder should have the freedom to waive these rights. Fifth, the time point of establishing the association between the English commercial sign and its Chinese equivalent shall be prior to the application date of the disputed trademark or the date of first use in commerce of the accused Chinese mark. This is mainly based on the consideration of the balance of the benefits of both the disputed parties and avoiding reverse hijacking of the English mark.

The following actions are recommended for the holders of the English commercial sign, in order to better protect their commercial signs. First, determine the corresponding Chinese equivalent of the English commercial sign as soon as possible and proactively file trademark applications for such Chinese equivalent. Those commercial signs deemed as the equivalent Chinese translation or trade name by the media or the public, which the holders of English commercial sign have not determined whether to use or not, shall be applied as a trademark as well, at least for the defense purpose. Second, fully respect the awareness of the media and the relevant public. Those equivalent Chinese translations already formed by the media and relevant public shall be considered and accepted as it is, or at least high caution shall be paid if it is to be denied. Third, select a proper Chinese translation of the trade name when filing the trademark application, especially when the trade name is identical to the English trademark. In the DELL case, one key reason why the court did not hold DAI ER in Chinese and DELL established the corresponding association was as follows: The trade name of Dell Inc. was translated into DI ER Inc. in Chinese and DE ER Inc. in Chinese when its trademark applications were filed at the early stage. In the RANDOM HOUSE case, one reason why the TRAB did not hold LAN DENG in Chinese and RANDOM HOUSE established the corresponding association was the holder of the English trademark translated its trade name into LUN DAO MU HAO SI Inc. in Chinese. Fourth, Keep regular monitor on suspected trademark applications filed by third parties, and take necessary measures in a timely manner. Fifth, collect sufficient evidence to establish the use and fame of the English commercial sign as well as the close or corresponding association between the Chinese equivalent and the English commercial sign. The evidence shall focus on those formed prior to the application date of the disputed trademark or the date of first use in commerce of the accused Chinese mark.

Footnotes

1 Beijing High Court (2011) GAO XING ZHONG ZI No. 1151 Administrative Judgment

2 Beijing High Court (2014) GAO XING ZHONG ZI No. 1521 Administrative Judgment

3 Beijing High Court (2014) GAO XING (ZHI) ZHONG ZI No. 3753 Administrative Judgment

4 Beijing High Court (2015) GAO XING (ZHI) ZHONG ZI No. 1469 Administrative Judgment

5 Beijing First Intermediate Court (2014) YI ZHONG ZHI XING CHU ZI No. 1950 Administrative Judgment

6 Beijing High Court (2009) GAO XING ZHONG ZI No. 976 Administrative Judgment

7 Beijing High Court (2009) GAO XING ZHONG ZI No.1284 Administrative Judgment

8 Beijing Second Intermediate Court (2007) ER ZHONG MIN CHU ZI No. 10758 Civil Judgment

9 Beijing High Court (2008) GAO MIN ZHONG ZI No. 322 Civil Judgment, China Supreme Court (2008) MIN SHEN ZI No. 1182 Civil Judgment

10 Beijing High Court (2013) GAO XING ZHONG ZI No. 927 Administrative Judgment

11 Beijing High Court (2010) GAO XING ZHONG ZI No. 1387 Administrative Judgment

12 Beijing High Court (2008) GAO MIN ZHONG ZI No. 1395 Civil Judgment

13 Fujian High Court (2012) MIN MIN ZHONG ZI No. 819 Civil Judgment, China Supreme Court (2013) MIN SHEN ZI No. 475 Civil Judgment

14 Beijing First Intermediate Court (2009) YI ZHONG MIN ZHONG ZI No. 4477 Administrative Judgment, China Supreme Court (2011) MIN JAIN ZI No. 57 Civil Judgment

15 Beijing First Intermediate Court (2011) YI ZHONG ZHI XING CHU ZI No. 290 Administrative Judgment

16 Beijing First Intermediate Court (2005) YI ZHONG MIN CHU ZI No. 10221 Civil Judgment

17 Beijing High Court (2007) GAO MIN ZHONG ZI No. 1684 Civil Judgment, China Supreme Court (2009) MIN SHEN ZI No. 313 Civil Judgment

18 Beijing High Court (2008) GAO XING ZHONG ZI No.717 Administrative Judgment, China Supreme Court (2010) ZHI XING ZI No. 48 Retrial Rejection Notice

19 Beijing First Intermediate Court (2013) YI ZHONG ZHI XING CHU ZI No. 2208 Administrative Judgment

20 Beijing High Court (2015) GAO XING (ZHI) ZHONG ZI No. 1577 Administrative Judgment

21 Beijing High Court (2013) GAO XING ZHONG ZI No. 1607 Administrative Judgment, China Supreme Court (2014) ZHI XING ZI No. 32 Administrative Judgment

22 Hunan High Court (2011) XIANG GAO FA MIN SAN ZHONG ZI No. 55 Civil Judgment

23 China Supreme Court (2013) ZHI XING ZI No. 40 Administrative Judgment

This article is the English translation for an article in Chinese published on China Trademark magazine (Issue 9, 2015). China Trademark magazine is sponsored by China Trademark Association under supervision of the State Administration for Industry and Commerce (SAIC) overseeing the Chinese Trademark Office (CTMO) and the Trademark Review and Adjudication Board (TRAB).

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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Authors
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