Can Long-Term Use Become A Non Registered Trademark?

In Changsha, the brand of "friendship Apollo" is widely known, but in fact, the registered friend of "friend" is not known as the Hunan friendship Apollo commercial Limited by Share Ltd (hereinafter referred to as friends of Changsha).

In December 10th, the Hunan Provincial Higher People's court heard publicly about the infringement of trademark rights by Apollo and Limited by Share Ltd.

Suo Li Rong, a Handan native in Hebei Province, claimed that it registered and approved the trademark of "friend and Arab" on 7 December 2006, and approved the thirty-fifth category of "promotion (for others)", which has been valid for 10 years. It has been approved by Shandong Shouguang enterprise and a Changsha company. However, it has learned that the friend has already used the trademark "friend and Arab" in many shopping malls.

Suo Li Rong believes that the company's rights to exclusive use of registered trademarks are infringed upon by the company. The court is requested to order the friend of the company to immediately remove the logo with the plaintiff's registered trademark in the store, destroy its packaging and publicity for infringing the trademark exclusive right, and immediately stop "friends and Arab" for online shopping, stock vote abbreviation and advertising activities, and bear the plaintiff's reasonable expenses and litigation costs for stopping the infringement.

Youya shares suggested that the use of "friend ah" is justified and reasonable. Since the establishment of the Hunan friendship Apollo Cmi Holdings Ltd, the controlling shareholder, since 2000, "friendship Apollo" has become its business name. Because of the widespread use of "friend and Arab", it has become the commonly recognized abbreviation for "friendship Apollo", forming the stable and unique corresponding relationship, which is the unique name of the department store service.

Before the application for trademark registration in 2004, friends of Asia holding company had prior rights to "friend and Arab League".

And from the identification elements, there is a big difference between the registered trademarks of the company and the logo of the friend's shares. Judging from the significance and popularity of the logo, there is no possibility of confusion and misidentification of the goods, so it does not constitute infringement.

In July 2nd, the intermediate people's Court of Changsha made a judgment of first instance and dismissed the request of Suo Rong.

The court of first instance held that the registration service of the company did not form the same service or similar service, and the commercial logo of the two sides did not constitute confusion.

According to the court's decision, in January 2002, when China began to implement trademark classification, the commercial wholesale and retail enterprises at that time could not register trademarks for their service categories.

In the new version of the classification, the retail sale of goods into the "sell for others" service.

Therefore, it is obviously unfair to accuse commercial enterprises of infringing trademarks registered by original individuals or organizations according to the new classification adjustment.

Suo Rong Rong appealed against the first instance, and appealed.

In the second instance of December 10th, the Attorney General of the company said that in the first instance judgment, "the abbreviation of the trade name has naturally evolved into a non registered trademark because of its long-term use".

Basis and judicial practice basis.

If the permission of a non registered trademark user is allowed to be pferred or the permission of another person to use a non registered trademark, it will result in an unlimited expansion of its rights. "The trademark registration of that country will lose its meaning".

The agent said that before he applied for a registered trademark, he had a prior right to "friend and Arab League", and he was a subsidiary of the holding company. He inherited his retail department brand while continuing his department store business.

The appellant

Friendship Apollo commercial Limited by Share Ltd does not agree to mediation, Hunan high court will be sentenced according to law.

The reporter consulted Luo Qiulin, a lawyer in Changsha who had nothing to do with the case.

He believes that in this trademark dispute case, the beginning of the use of "friend a" logo is the key.

He also cautioned that the case also raised alarm for listed companies: due diligence should be made in relevant intellectual property rights in the day-to-day operation and making major decisions, so as to prevent intellectual property legal risks early.

According to media reports, Chen Xuewen, a friend of the company, has said that there may be a lack of trademark management in the whole country, and a professional department has been set up to regulate the registration of trademarks.