Around a trademark consisting of “clover” Chinese characters, pinyin and figure, Germany-based Adidas and Fujian Putian Tianya Trading Company （Tianya） were entangled in a battle in China. The Beijing High People's Court recently made a final judgment and rejected Tianya's appeal, holding that the evidence was not be enough to prove the No. 6363717 trademark “Clover Sanyecao and its figure” （the trademark in dispute） was used on children's wear, gymnastics suits, clothing, and infant clothing, and the registration on the remaining goods.
The trademark in dispute was originally filed by Shenzhen Silicon Valley Yingke Technology Company （Silicon Valley Yingke Company） in November 2007, and was approved for registration in March 2012, certified to be used on Class 25 goods including clothing, caps, etc.
In 2015, Adidas filed a revocation application with the Trademark Office （TMO） against the trademark in dispute, claiming that the trademark in dispute was in no use for three consecutive years from December 14, 2012 to December 13, 2015 （hereinafter referred to as the designated period） and its registration should be revoked
According to evidence, Silicon Valley Yingke Company signed a trademark licensing contract with Shenzhen Yingshang Fashion Company （hereinafter referred to as Yingshang Company） in 2012, permitting the latter to use the trademark in dispute on Class 25 goods . From February 19, 2015 to April 17, 2015, Yingshang Company signed a purchasing contract on “Clover” brand garments with 6 companies , agreeing that the specification of the product name was “Clover san ye cao brand clothing”.
The TMO made a decision to uphold the registration of the trademark in dispute in July, 2016. Adidas was disgruntled and applied for re-examination with the TRAB.
Upon approval of the TMO, the trademark in dispute was transferred to Tianya Company in December, 2016.
The TRAB held in March 2017 that the evidence furnished by Tianya and Silicon Valley Yingke Company could prove that the trademark was in real, legal and effective use in children's wear, gymnastics suits, clothing, and infant clothing during the specified period. The use of the trademark on clothing cannot be deemed as the use on socks, gloves （clothing）， ties, belts, scarves and therefore the registration on these goods should be revoked. Accordingly, the TRAB decided to uphold the registration of the trademarks on children's wear, gymnastics suits, clothing, and infant clothing, and the registration on the remaining goods was revoked.
Adidas did not buy the TRAB decision and brought case to the Beijing Intellectual Property Court. After hearing, the Beijing IP Court made a first-instance judgment, revoking the review decision made by the TRAB, and ordered the TRAB to make a new decision. Tianya Company refused to call it a day and went on appeal to the Beijing High People Court.
After hearing, Beijing High held that although Silicon Valley Yingke Company submitted the “Clover” brand clothing purchasing contract and invoice signed by Yingshang Company and six enterprises, the above-mentioned evidences were named “Clover san ye cao brand clothing” which could not prove the use of the trademark in dispute. In this connection, the court finally dismissed Tianya's appeal and upheld the first-instance judgment. （by Wang Guohao）
（Editor Li Xingyi）
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