Legal Network reporter Zhang Wei
Building a brand is like cultivating a child, so trademarks are often called the children of the enterprise. Recently, a trademark dispute has not yet ended after the Supreme People's Court's gavel fell, attracting widespread attention from the society.
A child has two fathers, and these two fathers have fought for more than 10 years in the lawsuit for "custody". The Korean father has gone through a cycle of revocation of the British father's "BOY and Picture" trademark because he believes that the British father has not been used for three consecutive years. The Supreme People's Court made a retrial ruling at the end of 2017 regarding the administrative dispute over the trademark "BOY and Picture" under the name of the Korean father, rejecting the retrial request of the Korean father. Subsequently, the British father issued a statement, saying with confidence that the judicial procedures for the "BOY and Picture" trademark dispute case under the name of the Korean father have been completely terminated, and the latter no longer enjoys any exclusive trademark rights for the trademark.
This British father is located in Angelo Associate Company in the UK, and the legal representative is Cai Weiwen. The Korean father is Baoai Trading (Qingdao) Co., Ltd., and the legal representative is Korean Jin Jiaqi. The two fathers' entanglement is not complicated. The Korean father first filed an application for revocation against the "graphic" trademark under the name of the British father on the grounds that it has not been used for three consecutive years; the British father then filed an application for revocation on the grounds that the "graphic + BOY" trademark under the name of the Korean father and the "graphic" trademark that was proposed to "revoke three" constituted an approximate trademark on similar products.
However, the "graphic + BOY" trademark dispute case under the name of the Korean father was the first to complete a round of administrative litigation. The administrative litigation for the revocation and review of the "graphic" trademark under the name of the British father is still under the second instance trial. The "graphic" trademark under the name of the British father is a cited trademark in the administrative litigation of the "graphic + BOY" trademark under the name of the Korean father. Whether its rights are stable will ultimately affect the trademark under the name of the former. The British father hastily issued the above statement at this time, either because he did not read the ruling of the Supreme People's Court carefully or because he was selectively "blind".
The Supreme People's Court said in the above ruling: "If the Beijing Higher People's Court ruled in case (2017) Jingxing Zhong 4776, the judgment upheld the administrative judgment of the Beijing Intellectual Property Court on the revocation of the cited trademark (2016) Jingxing 73 Chu 483, then Baoai Company and Jin Jiaqi may apply for a retrial to this court within six months from the date of knowing or should knowing the judgment."
According to the provisions of Article 24, Paragraph 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Use of the Administrative Litigation Law of the People's Republic of China", the parties shall apply for retrial to the higher-level people's court within six months after the judgment, ruling or mediation document takes effect. If any of the following circumstances occurs, it shall be submitted within six months from the date of knowing or should have known: (1) There is new evidence enough to overturn the original judgment and ruling...
As long as the "graphic" trademark in the name of the British father is revoked and reviewed, the "graphic" trademark in the name of the British father is revoked for three consecutive years and is revoked, the "graphic" trademark in the name of the British father will no longer become an obstacle to the "graphic + BOY" trademark in the name of the Korean father is revoked. The second-instance judgment is new evidence, which is enough to overturn the previous second-instance judgment of the "graphic + BOY" trademark and restart the retrial procedure.
According to existing information, the "BOYLONDON" series trademark was originally applied for registration by the British father, but after only staying in his hands for 21 days, in July 1995, the British father packaged the "BOYLONDON" series trademark and "adopted" the Korean father in a package.
After that, for nearly 10 years, the two fathers were in peace. Until in 2004, a person named Wu Zheyuan started a "BOYLONDON" son-in-law with his Korean father in Korea in the name of his British father.
During the trial of the Eagle Graphics trademark under the name of the British father, Wu Zheyuan said that he resigned from the British father in 1998 and returned to Hong Kong, China. According to the website of the British company registration authority, the British father's Angelo Associate Company has been closed since the 1990s.
After that, both fathers expanded their business territory to China and successively applied for registration of relevant trademarks in China.
The trademark dispute between the two fathers extended to China. The British father said that the Korean father maliciously registered his pre-registered trademark and tried to seize his market in China. The Korean father said that the British father intended to seize his trademark rights and spread false facts to his nearly 400 dealerships, hindering his normal operations.
The BOY LONDON brand, which has many celebrities as its fans, has stimulated the purchasing desire of teenagers around the world. Faced with this huge market, both fathers want to be included, but in the end, who can "love a son" still needs to stop the dispute. It is too early to claim his son confidently without the legal procedures.
Many issues are still worthy of attention, such as the trademark involved in the case of the British father was eventually revoked. Under the existing legal framework, can the Korean father regain his exclusive right to the trademark, and how should he take remedial measures to protect his legitimate rights? When one of the two fathers enjoys the exclusive right to the relevant registered trademark, does the other party continue to use the relevant trademark constitute a trademark right? How should such behavior be defined?
