China: China Focus: A Match Not Made In Heaven

Last Updated: 3 November 2016
Article by Yuncheng Li

"Fei cheng wu rao", which means "Do not disturb if you're not sincere", is a phrase often used in matrimonial advertisements in newspapers. It was the name of a Chinese TV dating show produced by and aired on Jiangsu Television, a high-profile state-owned network. It was first broadcast in January 2010 and began airing on Saturday and Sunday nights in China.

The programme is arguably one of the most successful game shows in China and undoubtedly the most popular and highly rated TV dating show there. Episodes are also distributed online and viewed internationally over the internet and satellite television. The show's popularity and social commentary have drawn the attention of academics and foreign media. It has enjoyed great popularity thanks to its unique approach to dating and conversations that are often humorous and self-aware. The show is famous for seeking to 'stretch the limits' of what can be discussed on Chinese television.

On February 16, 2009, an individual called Jin Ahuan filed a trademark application in China for '非诚勿扰' ('Fei Cheng Wu Rao') in class 45 for dating services and marriage agencies. The application was approved for registration on September 7, 2010 under registration no. 7199523. Ahuan then started a marriage agency business under the trademark name. In the same year, the defendant's TV show was first broadcast.

Lovers' tiff

In 2013, Ahuan sued Jiangsu for trademark infringement at the Court of Nanshan District, Shenzhen (first instance court). The court held that Jiangsu used 'Fei Cheng Wu Rao' on the dating show to distinguish the programme from those of others and that the name was identical to the trademark registered by Ahuan.

However, the court held that Fei Cheng Wu Rao was a TV show which was different from the dating and marriage agency services covered by the registered trademark. Therefore, the court said, the use of the name did not constitute trademark infringement.

The plaintiff then appealed to the Shenzhen Intermediate Court against the first instance court's verdict. The second instance court upheld the appeal, ordering Jiangsu to immediately stop using the trademark 'Fei Cheng Wu Rao' on its dating TV show.

This lawsuit has drawn widespread attention not only among IP professionals but also the public in China. First, it is widely recognised in the practice of trademark lawsuits that the international classification of goods and services is instrumental in the filing and examination of trademark applications, but that it is only for reference when deciding whether goods/services are identical or similar regarding actual use of a trademark.

According to the Shenzhen Intermediate Court, the TV show Fei Cheng Wu Rao's goal, content, approach and customers concerned a dating, marriage or matchmaking service. Therefore, the TV show's name was identical to the dating services and marriage agencies registered under Ahuan's trademark 'Fei Cheng Wu Rao'.

The Shenzhen Intermediate Court also found that Ahuan's trademark had been used after registration and that the TV show had significantly affected the use of the trademark registration by the plaintiff. It held that the use of the mark by Jiangsu was a commercial use for profit because Jiangsu made huge profits by selling sponsorship, advertisements and SMS voting. The court held that the popularity and extensive promotion of the TV show had caused reverse confusion, which means the public would see Jiangsu, not Ahuan, as the true owner of the brand name Fei Cheng Wu Rao.

Role reversal

Once again, this lawsuit has brought up the doctrine of reverse confusion in trademark practice in China. Unlike typical infringement of trademark rights where the infringer is normally less well-known or powerful than the trademark owner, reverse confusion generally occurs when the infringer has much stronger market influence than the trademark owner.

Average consumers/the public are not likely to believe the goods or services provided by the infringer originate from the registered trademark owner. Instead, the public are very likely to believe that the use of the mark by the registered trademark owner is either illegal/unauthorised or licensed/authorised by the infringer. Reverse confusion prevents the weaker brand owner from expanding its brand influence and reputation.

In this case, the Jiangsu TV dating show had such powerful market influence that the plaintiff was substantively deprived of his right to market his own Fei Cheng Wu Rao brand name. In other words, the plaintiff's dating and/or marriage agency service under this name was taken by the public as being fake, infringing or counterfeit compared to the defendant's TV dating show.

Ahuan did not make a claim for compensation in the course of proceedings. He merely asked the defendant to stop the infringement. This fact certainly created favourable conditions for winning the suit.

The other reason why this lawsuit has drawn widespread attention among the public in China is that if Jiangsu changed the name of the TV show or ceased using it, the company would suffer a big loss. Despite this, the TV show's name was changed to 缘来非诚勿扰 (Yuan Lai Fei Cheng Wu Rao, no specific meaning as a combination). The execution of the court ruling by Jiangsu, a state-owned, high-profile media company, embodies the spirit of the rule of law.

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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