A DABATED TRADEMARK JUDGMENT BY HANGZHOU COURT

COPYRIGHT BREACH COSTS 20,000,000 YUAN

(This Article is taken from the South China Morning Post written by Chloe Lai dated 11 January 2008, for reference only)

G2000 Group, a company owned by Michael Tien Puk-sun, former chairman of the Kowloon-Cantoon Railway Corporation, has been ordered by a Hangzhou court to stop manufacturing and selling fashion accessories such as stockings, ties and belts under the G2000 brand on the mainland.

The court also ordered the company to pay 20 million yuan to Hangzhou businessman Zhou Hua for infringing the latter’s registered trade mark, 2000.

Chen Qun, spokeswoman of the Hangzhou Intermediate People’s Court, said yesterday that G2000 had filed an appeal so the court had yet to execute the ruling. Describing the case as a battle between an ant and an elephant, she said the compensation G2000 had to pay was the largest the court had ever ordered.

“It is why we decided to publicize the case now. We want the public to know the court is determined to safeguard copyright,” Ms Chen said. She said the Hangzhou businessman selling fashion accessories registered the 2000 trademark in 1997 for 25 types of merchandise.

So when G2000 registered its trademark on the mainland, the Hong Kong company was only allowed to use G2000 brand for its clothes and bags. For accessories, G2000 was ordered to use the G2 brand.

G2000 declined to comment on the case yesterday.

Comments:

(1)Given that the individual plaintiff has recently won the said case at the Hangzhou intermediate people's court, primarily because he has legally owned a trademark in China of "2000", applicable to fashion accessories of stockings, ties and belts; he has obtained earlier other administrative decision from the Beijing Based China Patent Office; he has obtained favourable judgment earlier from the Beijing Higher People's Court; in additions, given the realistic fact that the Hangzhou court should/might have practically consulted opinions, before its judgment was issued, with the higher court in Zhejiang province, even though it is not appropriate but is said practiced constantly or at intervals among the Chinese courts for various reasons, therefore, G2000 company as defendant has to make ways now to obtain an independent "Experts' Opinion" to be issued by the top/leading Chinese IP mastermen, stating with convincing/authorative reasons therein that G2000 and 2000 brands are not the same in the particular case, no speaking of infringements and compensation amounts ! The mastermen's opinions could certainly or to much extent influence the higher court judges' appeal judement.

(2)the defendant of G2000 company may not win its appeal case if it simply insists that the individual plaintiff with his 2000 brand have no reputions at all in Mainland China, while G2000 is widely known in there, for the plaintiff regardless of individual or a corporate person also has equal rights to have his duly registered trademark of 2000 be legally protected if his 2000 brand maintains valid, even though it might practically be regarded that it is the 2000 brand owner of the individual plaintiff who has been riding on the corporate G2000 brands in the past years, not the opposite.

(3)Suppose that the Zhejiang higher court upholds the judgment of 1st instance, the compensation amounts of RMB20,000,000 should also be greatly reduced, for there are no apparent evidences from the individual plaintiff to support those amounts, which are simply calculated out by the first court juges based on their analysis. According to the Chinese evidence judicial interpreations, the individual plaintiff has obligations and liabilities to deliver such evidences to the court or ask the court to collect those evidences before official trials, or else, the court can not support the plaintiff's demand in the regard. It is obviously unusual and seemingly unfair that the judges of 1st instance has served not only as independant judges, but also as participants in favour of plaintiff, which may easily lead the defendant of G2000 and outsiders to come to conclusions that the Hangzhou court judges have not issued an absolutely fair judgment.