Jingdong sued the intellectual property office. Who should the trademark belong to?

category:Internet
 Jingdong sued the intellectual property office. Who should the trademark belong to?


On November 14, the official wechat @ jingfa.com of Beijing Higher Peoples court and the official wechat @ intellectual property Beijing of Beijing Intellectual Property Court issued an article saying that the administrative dispute over the invalidity of the double 11 trademark of Jingdong held court today.

The plaintiff of the case is Beijing Jingdong three hundred and sixty degrees e-commerce Co., Ltd. (the legal representative is Liu qiangdong), and the defendant is the State Intellectual Property Office. In the afternoon of the same day, the Beijing Intellectual Property Court held a public hearing in accordance with the law to hear the series of cases. Alibaba Group Holding Co., Ltd. (hereinafter referred to as Alibaba company) took part in the lawsuit as a third party.

The background of this case is that JD Company has applied for registration of a series of double eleven trademarks, including double eleven of JD, which are approved to be used in category 35 online advertising on computer network; category 38 TV broadcasting; category 41 education and other services.

In response, Alibaba filed a request for invalidation on July 26, 2017.

The Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce held that the litigation series trademark and Alibabas previously registered double 11, double 11 Carnival, double 11 and other trademarks constitute similar trademarks for similar services, which violates the provisions of Article 30 of the Trademark Law of the peoples Republic of China (hereinafter referred to as the Trademark Law), and hereby ruled that: litigation series The trademark is either declared invalid or in part of the service.

Jingdong company is not satisfied with the above ruling, and has filed an administrative lawsuit with the court within the statutory period.

Since 2009, Alibaba has held the double 11 activity for the first time. The surging news reporter inquired China Trademark network and found that Alibaba Group Holdings Co., Ltd. has applied for the double 11 trademark since 2011. Up to now, Alibaba has applied for the double 11, double 11 Online shopping Carnival, double 11 Carnival and other trademarks in many commodity categories.

In 2014, Alibaba and other e-commerce platforms engaged in close combat with regard to the use of the double 11 initiative.

According to media reports, according to a notice on the Internet with the official seal of Zhejiang tmall Network Co., Ltd., with the authorization of Alibaba, tmall has the exclusive right to use the double 11 trademark and is protected by law. Any other use is a trademark infringement. In response to the above circular letter, JD issued a statement on October 30, 2014, saying that an e-commerce enterprise was monopolizing in the name of law.

After that, e-commerce platforms including JD will no longer use the double 11 for publicity, and the full name of JDs double 11 activity is 11.11 JD global good things Festival.

In the trial on November 14, Jingdong thought that double 11 and double 11 are the common names of the commercial promotion Festival on November 11 every year, and the use of trademarks lacks the significance of trademarks in the services involved. Alibabas prior trademark is not significant and has never been used in the service involved in the case. Therefore, it is impossible to confuse the litigation series trademark with Alibabas prior trademark. The determination of the sued ruling that it is easy for consumers to mistakenly think series trademarks or from the same market subject or with some connection is seriously inconsistent with the objective facts.

To sum up, Jingdong believes that the registration of the sued series of trademarks does not violate the provisions of Article 30 of the trademark law, and requests the court to cancel the sued ruling and order the defendant to make a new ruling.

The defendants State Intellectual Property Office argued that the services approved and used by the litigation series trademarks are the same or similar to the quoted trademarks in terms of service mode, service purpose and service object, and belong to the same or similar services respectively. The defendants ruling confirms that the facts are clear, the applicable law is correct, and the procedure is legal. It requests the court to reject the plaintiffs claim in accordance with the law, and orders the plaintiff to bear the litigation costs of this case.

Ali said that the plaintiffs illegal use of the double 11 logo in the actual operation led consumers to mistakenly believe that it was related to the third partys double 11 brand, and its behavior violated the third partys exclusive right to use registered trademarks, violated the principle of fairness and integrity, and damaged the normal market order.

Ali believes that there is a long-term and fierce competition between the plaintiff Jingdong and Ali. The existence of the litigation series of trademarks will greatly damage the high popularity of Alis double 11 brand through a large amount of investment, cause confusion and misunderstanding among the relevant public, and cause serious damage to the market order and Alibabas good reputation, which subjectively has obvious free riding malice.

In conclusion, Alibaba believes that the facts identified in the ruling are clear and the applicable laws are correct, and requests a judgment to reject the plaintiffs claim.

According to the article of Beijing Intellectual Property Court, there are two focuses of controversy in this case.

First, whether the plaintiffs double 11. Double 11 and figure, double 11 of Jingdong, double 11. Double 11 on Jingdong and figure and the third-party Ali companys double 11, double 11 Carnival, double 11 and other quoted trademarks constitute similar trademarks in the same or similar services.

Second, based on whether the use of double 11 as a trademark is significant or not, and whether the prior trademarks of double 11 series of Alibaba company are well-known or not, whether the litigation series trademarks of JD Company and the prior citation trademarks of Alibaba company will lead to confusion and misidentification of the relevant public.

The case was not pronounced in court and is still under further trial. The dispute over the double 11 will continue.

Attachment: the official wechat @ Beijing France website article of Beijing Higher Peoples court the administrative dispute over the invalidation of the double eleven trademark of Jingdong is going to court today

The annual online shopping Carnival day - the double 11 has come to an end. Beijing Jingdong three hundred and sixty degree e-commerce Co., Ltd. (hereinafter referred to as Jingdong company) sued the State Intellectual Property Office to the court for its registered five double 11 series trademarks.

This afternoon, the Beijing Intellectual Property Court held a public hearing in accordance with the law to hear the series of cases. Alibaba Group Holding Co., Ltd. (hereinafter referred to as Alibaba company) took part in the lawsuit as a third party.

The scene of the trial is from the WeChat public.

The court found out that the trademarks involved in the dispute were respectively double 11. Double 11 and figure Trademark No. 15566477, 15566498 and 15566606, double 11. Double 11 and figure Trademark No. 13543909, and Jingdong double 11 and figure Trademark No. 15566750 (hereinafter referred to as litigation series trademark), which were approved to be used in category 35 advertising and computer network Online advertising; 38 TV broadcasting; 41 education and other services.

Litigation series trademark

On July 26, 2017, the third party Alibaba company filed a request for invalidation of the above litigation series trademarks. The Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce held that the litigation series trademark and Alibabas previously registered double 11, double 11 Carnival, double 11 and other trademarks constitute similar trademarks for similar services, which violates the provisions of Article 30 of the Trademark Law of the peoples Republic of China (hereinafter referred to as the Trademark Law), and hereby ruled that: litigation series The trademark is either declared invalid or in part of the service.

Citation marks

Jingdong company is not satisfied with the above ruling, and has filed an administrative lawsuit with the court within the statutory period.

The focus of the dispute in this case is summarized as follows

1. Does the plaintiffs double 11. Double 11 and figure, double 11 of Jingdong, double 11. Double 11 on Jingdong and figure and the third-party Ali companys double 11, double 11 Carnival, double 11 and other quoted trademarks constitute the same or similar trademarks in similar services?

2. Based on whether the use of double 11 as a trademark is significant, whether the prior trademarks of double 11 series of Alibaba company are well-known, etc., whether the litigation series trademarks of JD Company and the prior citation trademarks of Alibaba company will lead to confusion and misidentification of the relevant public.

The plaintiff Jingdong company believes that

I. double 11 and double 11 are the common names of the commercial promotion Festival on November 11 every year. As a trademark, the use of the service involved in the case lacks the due significance of the trademark.

2. Alibabas prior trademark is not significant and has never been used in the service involved in the case. Therefore, it is impossible to confuse the litigation series trademark with Alibabas prior trademark. The determination of the sued ruling that it is easy for consumers to mistakenly think series trademarks or from the same market subject or with some connection is seriously inconsistent with the objective facts.

To sum up, the registration of the litigation series of trademarks did not violate the provisions of Article 30 of the trademark law, and the court was requested to cancel the ruling of the defendant and order the defendant to make a new ruling.

Defense of the State Intellectual Property Office of the defendant

The services approved and used by the litigation series trademarks are the same or similar to the quoted trademarks in terms of service mode, service purpose and service object, and belong to the same or similar services respectively.

Although the litigation trademark series has been designed to some extent, it is still easy to be identified as double 11, and the citation trademarks are all written as double 11 and double 11. Therefore, the litigation trademark series and the citation trademark are similar in the composition and call of the words, and the relevant public gives common attention, so it is easy to think that the above-mentioned trademarks are series trademarks.

If there is the same or similar service mentioned above in the litigation series trademark and the citation trademark, it is easy for the relevant public to think that the service used by the dispute trademark and the two citation trademarks originates from the same market subject or has some connection, thus confusing the source of the service, which has constituted the similar trademark used in the same or similar service referred to in Article 30 of the trademark law.

The defendants ruling confirms that the facts are clear, the applicable law is correct, and the procedure is legal. It requests the court to reject the plaintiffs claim in accordance with the law, and orders the plaintiff to bear the litigation costs of this case.

The third party Ali company believes that

First, double eleven is a mark created by a third party and used first as a trademark. After years of continuous publicity and use, it has established the only corresponding relationship with the third party in fact before the application for registration of a series of trademark lawsuits. The double eleven trademark of the third party has the remarkable characteristics required by the trademark law. The third party should be protected by the trademark law if it is registered and enjoys the exclusive right of trademark according to law.

2. The litigation series trademark and the prior citation trademark of the third party constitute similar trademarks used in the same or similar services.

3. The plaintiffs illegal use of the double eleven logo in actual business makes consumers mistakenly believe that it is related to the third partys double eleven brand, and its behavior infringes the third partys exclusive right to use registered trademarks, violates the principle of fairness and integrity, and destroys the normal market order. Fourth, there is a long-term fierce competition between the plaintiff and the third party. The existence of the litigation trademark series will greatly damage the high popularity of the third partys double eleven brand through a large amount of investment, resulting in confusion and misunderstanding of the relevant public, and serious damage to the market order and the good reputation of the third party, which subjectively has obvious hitchhiking malice. To sum up, the third party believes that the facts identified by the sued ruling are clear and the applicable law is correct, and requests the judgment to reject the plaintiffs claim. The case was not pronounced in court and is still under further trial. Source: surging news editor: Wang Fengzhi, nt2541

3. The plaintiffs illegal use of the double eleven logo in actual business makes consumers mistakenly believe that it is related to the third partys double eleven brand, and its behavior infringes the third partys exclusive right to use registered trademarks, violates the principle of fairness and integrity, and destroys the normal market order.

Fourth, there is a long-term fierce competition between the plaintiff and the third party. The existence of the litigation trademark series will greatly damage the high popularity of the third partys double eleven brand through a large amount of investment, resulting in confusion and misunderstanding of the relevant public, and serious damage to the market order and the good reputation of the third party, which subjectively has obvious hitchhiking malice.

To sum up, the third party believes that the facts identified by the sued ruling are clear and the applicable law is correct, and requests the judgment to reject the plaintiffs claim.

The case was not pronounced in court and is still under further trial.