Trial Docket: (2014) NingZhiMinChuZi No. 232
Appellate Docket: (2016) SuMinZhong No. 1326
Jiangsu Province
[Headnotes]
The development and sales of commercial housing projects, and the service of real estate management and construction are primarily similar in terms of consumers and distribution channels, with certain connection between the two, and should be considered as similar products and services. Although commercial housing project sales are restricted to certain geographic localities and consumers usually pay greater attention when making purchases, they might, in view of the rapid communication of information, particularly when relevant registered trademarks are well known, easily be influenced by the information obtained through the Internet, television, paper media, etc. If an infringer uses in business operations a trade indicia that is similar to a relevant registered trademark, it is likely to mislead the relevant public into believing that the two are associated to some extent. Therefore, a developer should be enjoined from its use when it is intentionally made.
[Synopsis]
Plaintiff: China Resources Group ("China Resources")
Defendant: Jiangsu Runshi Real Estate Development Co., Ltd. ("Runshi")
China Resources obtained in December, 1994 a series of trademark Reg. Nos. 773,121 and 779,532 for "HUAREN" ("China Resources" in Chinese), and "Huaren and You, Hand in Hand, Will Change Life," designating "construction housing projects (apartments), constructions, real estate management, real estate leasing, and real estate agency. It has developed, among others, many real estate projects in Nanjing, Wuxi and other places in Jiangsu Province within China, investing tremendous financial resources, and sustaining continued promotion and use of the above marks. China Resources contends that Runshi Real Estate, by adopting a name "华润景城" (literally, "China Resources Buena Vista"), has infringe upon its exclusive right under the registered trademark, and therefore requests injunction against Runshi and change of name of its housing project, and seeks damages and reasonable expenses in the amount of 2,089,512 yuan.
Run shi denies trademark infringement by alleging that the housing projects it developed does not fall within the designated scope of usage of China Resources' registered trademarks at issue, and China Resources does not have any housing projects in Suqian and Yixing, its registered trademarks are not well known in these locales, and its real estate, being highly valuable assets for which a consumer would exercise greater care, and are therefore not likely to be confused.
At trial, the Nanjing Intermediate Court concluded that Runshi infringed the exclusive right under the registered trademark of China Resources. First, Runshi's development and sales of the "China Resources Buena Vista" housing projects and China Resources registered trademarks intended scope of use, judged from the perspective of relevant public, have substantially similar functions and uses, similar consumers and similar distribution channels, and are both real estate developers, sharing certain connection, and therefore should be considered as providing similar services. Second, China Resources has been committed to extensive and continued promotion of its registered trademarks, and the housing projects under the name of "China Resources" are relatively reputable. The name of "China Resources Buena Vista" used by Runshi, though with discernible disparity on visual with China Resources' registered trademarks, the core elements being "China Resources," is nonetheless similar, and when used by Runshi, likely to cause mistake among the public as to the source of the services, thereby mistakenly believing that Runshi's housing projects have some kind of relationship with China Resources. For these reasons, Runshi is found to have infringed upon the exclusive right under the registered trademark of China Resources, for which civil liabilities must be incurred. Based on this, the Nanjing Intermediate Court decreed: Runshi is hereby enjoined from further infringement, and is to pay damages of 2,089,512 yuan to China Resources.
The Jiangsu High Court on appeal held: Runshi's acts were infringement of the exclusive rights under the registered trademark of China Resources. First, the designated class of services for China Resources' mark are real estate management and construction, which, compared to Runshi's business of sale of commercial housing products, have certain connections as both have substantially similar functions, uses, consumers and distribution channels, and both are real estate developers. It should be recognized that real estate management and construction have connections with sale of commercial housing projects. Secondly, although four of the five China Resources' registered marks involved here use traditional Chinese characters, these characters, however, are commonplace traditional Chinese characters, easily recognized and pronounced by the ordinary consumers and not the hard ones suggested by Runshi, which otherwise would not have been used by Runshi in its Yixing housing projects. Therefore, "China Resources Buena Vista" used by Runshi and the "China Resources" series registered trademarks owned by China Resources are similar marks. Finally, the facts in this case show that China Resources since registration of its marks have developed a great number housing projects under the name of China Resources, and has been committed to sustained and extensive promotion in the media including the Internet, establishing relatively recognizable reputation on the domestic market. Although the sale of commercial housing projects are location specific to some extent, and consumers may exercise great notice, in this great time of rapid communication of information, particularly when China Resources have developed a great number of housing projects, even those consumers who have long been living in Suqian or Yixing may have received information of China Resources registered trademarks from the Internet, television or paper media. When Runshi in its business by selling housing projects using "China Resources Buena Vista," the consuming public would inevitably misled into believing that the projects have something to do with China Resouces.
The Jiangsu High Court on appeal decreed: the appeal is dismissed and judgment affirmed.
[Judge's Comment]
With the development of China's market economy, and competition in real estate business becomes more and more fierce, the naming of housing projects plays the key role in real estate promotion and sale. Many large real estate businesses use their own names or trademarks for their housing projects developed all over the country creating huge brand effects. Due to lack of regulation on approving housing project names, however, imitation of well known names, registered trademarks or trade indicia, and takeoff on others' reputable housing project names are all over the place. The solution of this case represents by example an unwaivering judicial will to protect intellectual properties in real estate business and to maintain fair competition to preserve an orderly market for the real estate business.
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