Then if you do the multiplication, you will get a number of possible combinations. To sum up, Pinyin as an indicator is quite general, the versions of combinations are simply too many. Therefore, it would be quite hard to say that “Qiaodan” has a stable corresponding relation with "乔丹" or Michael Jordan.
The ruling was totally fine, under the premise that the logo is observed separately -- or to be more accurate, is observed in order to answer the question of "is the silhouette Michael Jordan?". Yet, what if compare it with the Air Jordan logo... on sports shoes? That is to say, to answer the question of "will it mislead consumers that the Qiaodan logo has a certain association with Michael Jordan? Will it then cause confusion?" Probably -- the evidences submitted have supported that.
* To be continued...
In this InternKat's opinion, many reportages have overestimated the (positive) significance of this case. Or shall I say, they jump to conclusions too soon. By now, Michael Jordan has only won the name-right on the 3 "乔丹" trade marks, in other words, had lost more than 60 "乔丹"-related trade marks before. Qiaodan Sports the Chinese company made a confident announcement right after the ruling saying: “our ‘essential trade marks of our business (see the picture below)’ are not involved today. In fact, the 3 “乔丹” trade marks that have been ruled against us are all defensive trade marks that had been only registered for less than 5 years on much less important products.”
|The "essential trade mark" for Qiaodan Sports, which are "safe" for now.|
“Where a registered trademark is in violation of the second and third paragraph of Article 13, Article 15, the first paragraph of Article 16, Article 30, Article 31 or Article 32 of this Law, the holder of prior rights or an interested party may, within five years upon the registration of the trademark, request the trademark review and adjudication board to declare the registered trademark invalid. Where the aforesaid registration is obtained mala fide, the owner of a well-known trademark is not bound by the five-year restriction...”
Apparently, Qiaodan Sports assumes that the rest of the “乔丹” trade marks that have been registered for more than 5 years are "invincible". Is that so?
According to Article 120 of the General Principles of the Civil Law of the PRC,
“If a citizen's right of personal name, portrait, reputation or honour is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation be rehabilitated, the ill effects be eliminated and an apology be made; he may also demand compensation for losses”.
Paradoxes emerge where name-right meets trade mark right -- can name-right, as a prior right, substantially stop the trade mark uses (as in Germany)? If so, then what is the practical point of having the "5-year restriction"? Well, the restriction probably can be broke by referring to the bona fide principle. Yet, what if the Chinese courts invoke the <Notice of the Supreme People's Court on Issuing the Opinions on Several Issues concerning Intellectual Property Trials Serving the Overall Objective under the Current Economic Situation> (Article 9) and accordingly safeguard the "fruit of the poisonous tree"? Part of the highlights of Article 9 read as follows:
"... Trade marks which have been used for a relatively long time and have established a relatively high reputation in the market and created their own groups of related marks can not be lightly revoked, at the same time as protecting the earlier rights according to law, respect the market reality that the related public has already objectively formed a separation between the related marks.
It is necessary to grasp the legislative spirit of the procedures of the Trade mark Law relating to protection of prior rights and protecting the market order and focus on maintaining the procedures that have already established and stabilized the market order to prevent parties creating fake trademark disputes to opportunistically and predatorily take advantage and avoid hastily revoking a registered trade mark causing great hardship to an enterprise’s ordinary course of business.
For trade marks which conflict with other’s prior copyright, business names and other property rights, which have exceeded the period for dispute under the Trade mark Law and cannot be cancelled, the prior right holder can still within the limitation period bring civil litigation, but the People's Court can no longer issue a decision of civil liability to stop use of the said registered trade mark. (...)"