Contact Us

New Media Cooperation (Website & Wechat)

Bess Xiang
Tel: 010-52188230
Email: bess.xiang@hurrymedia.com

Official Wechat

China IP magaziine

DOLCE&GABBANA TRADEMARK INFRINGEMENT

发布时间:2018-05-22

Trial Docket: (2016) Su 0583 XingChu No. 137
Appellate Docket: (2016) Su 05 XingZhong No. 455
Jiangsu Province
[Headnotes]
The indicative fair use of trademark means that the business entities use other's registered trademark with goodwill and in an appropriate way during the business activity so as to impartially demonstrate the originality and use of their products and the innate features of other products. The indicative fair use of trademark also requires the using of trademark based on integrity and goodwill, the specific forms and degree of the use of the trademark should be kept within appropriate range, and the use of trademark has not damaged the legitimate rights of the trademark owner.
According to Section 1, Article 20 and Article 24 of the Regulation on the Administrative Penalty Procedures of Industry and Commerce Administrative Organs, after the Industry and Commerce Administrative Organs complain, appeal, report and decide to file a case, the personnel handling a case should timely conduct an investigation, collect and acquire evidence, and check in accordance with law and regulation, they can also inquire parties concerned and certifier. Therefore, the inquiring of parties concerned is not the requisite of issuing an administrative penalty.
[Synopsis]
Plaintiff: Shanghai YiLang International Trade Co. , Ltd., Kunshan Branch (YiLang Company)
Defendant: Administration for Market Regulation of Kunshan City, Kunshan Municipal People's Government
The YiLang Company is selling leather handbags, clothes, shoes and baldrics with various kinds of trademarks in its business site in "Kunshan First Outlets". In many places of its shop door and inside the shop, the YiLang Company purposely uses the trademarks such as "LOEWE", "BALL" and "DOLCE&GABBANA". From October to December, 2015, LuoWei Co., Ltd. (Spain), Bally Co., Ltd. and DuoXiJia Trademark Co., Ltd. respectively appealled to Administration for Market Regulation of Kunshan City on the illegal use of the above trademarks. On November 3, 2015, Administration for Market Regulation of Kunshan City filed a case for the appeal, and on March 15, 2016, it released the Notice of Correcting Misconducts (No. [2016] G/Z/S0801002) requiring the YiLang Company immediately stop its infringement behaviors of using registered trademark of "LOEWE", "BALLY" and "DOLCE&GABBANA" in its shop door and inside the shop. YiLang Company requested an administrative review of Kunshan Municipal People's Government on May 20, 2016, Kunshan Municipal People's Government released the Decision on the Administrative Review (No. 40) on June 14, 2016, maintaining the Notice of Correcting Misconducts. The YiLang Company file a lawsuit to the court and pledges the court to, first, revoke the Notice of Correcting Misconducts (No.[2016]G/Z/S0801002) released by Administration for Market Regulation of Kunshan City, and second revoke the Decision on the Administrative Review released by Kunshan Municipal People's Government.
Without the permission from trademark register, the YiLang Company behavior that purposely uses the trademarks such as "LOEWE", "BALLY" and "DOLCE&GABBANA" in the shop door and inside the shop, is defined as the use of trademark above, this use of trademark will misguide the public on the identity of the retailer, misunderstand t h a t Y i L a n g Company i s a n authorized retailer or there are other relevant relations between YiLang Company and trademark holder, and further inappropriately used the business reputation the trademark accumulated which excessed the appropriate range of using the trademark, damaging other's inclusive rights on registered trademark, and this is defined as infringement behaviors of exclusive rights of trademark. The Notice of Correcting Misconducts (No.[2016]G/Z/S0801002) released by Administration for Market Regulation of Kunshan City clearly tells the truth, and the administrative penalty procedure of Administration for Market Regulation of Kunshan City as well as the procedure of Decision on the Administrative Review released by Kunshan Municipal People's Government both are in accordance with the law. Therefore, the court rejects the pledge proposed by the YiLang Company, YiLang Company then made an appeal, the second instance court maintained the judgement.
[Judge's Comment]
This case fully demonstrates the function of judicial review of administrative trial on intellectual property and administrative law enforcement, it conducts an overall review on the legitimacy of administrative enforcement on the facts and law level, the case also attaches importance to combining the judicature of intellectual property and administrative protection, clarifies the lawful boundary to the difficult questions on registered trademark infringement in the import and export, and regulates the behaviors of the business entities' overuse of indicative fair use of trademark as well as the infringement of making use of other's business reputation.