Shulou(Shulou.com)11/24 Report--

According to CTOnews.com news on October 2, on September 13 this year, the Beijing court released the documents of the first instance of the case related to Shanghai Magic Information Technology Co., Ltd. (hereinafter referred to as "Magic Power") and the State intellectual property Office, saying that it rejected the plaintiff's request. However, the matter of the second trial was reversed.

CTOnews.com learned that Phantom Electric, an affiliated company of bilibili (bilibili), had filed a request for invalidation of the disputed trademark "bilibili BILIBILI" held by Jinjiang Jiande Food Co., Ltd. (hereinafter referred to as Jiande Company) and submitted relevant evidentiary materials to the State intellectual property Office. On the other hand, the State intellectual property Office ruled that the dispute trademark should be maintained because the fact that the cited trademark is well known to the public is lack of factual basis, and the relationship between the goods used in the dispute trademark approval and the services approved by the cited trademark is not strong, so as not to mislead the public.

Bilibili believes that before the application date of the disputed trademark, the citation trademark and the corresponding Chinese "bilibili" have reached a well-known degree in its approved services, and the disputed trademark is a copy and imitation of the cited trademark. and the approved scope of use of the two are closely related, easy to mislead the public and damage the rights and interests of Magic Power Company (bilibili). Therefore, it is requested to invalidate the disputed trademark in accordance with the provisions of Article 13, paragraph 3 and Article 45 of the Trademark Law of the people's Republic of China (hereinafter referred to as "Trademark Law"), and submitted enterprise information, filing information, news reports, advertising, protected records, judgments, notarization and other evidence materials.

The State intellectual property Office believes that the evidence on record is insufficient to prove that the cited trademark was well-known before the date of application of the disputed trademark, and that the scope of use of the disputed trademark and the approved use of the cited trademark is not strong, so it will not mislead the public and did not violate Article 13, paragraph 3, of the Trademark Law, so it ruled to maintain the disputed trademark.

Unconvinced, Magic Power Company (bilibili) filed an administrative lawsuit with the Beijing intellectual property Court.

The court of first instance held that in the evidence submitted by Magic, the basic information of the company, the company's equity structure, financing, and the company's annual report were not related to judging whether the cited trademark was famous or not. Although the Internet annual report, advertising, delivery materials, media reports and the company's award-winning situation can prove that the citation trademark "bilibili" and its corresponding Chinese expression "bilibili" have formed a stable corresponding relationship with bilibili, http://bilibili.com (bilibili on-screen comments) and mobile phone clients, it is not enough to prove that the citation trademark has a high reputation in its approved training and other services. Video evidence such as "must-browse" videos, screenshots taken by bloggers with the highest number of broadcasts, and bilibili's operation of games are different from the types of services approved for use, so they are not enough to prove that there is extensive publicity and promotion, and it is not enough to prove that the cited trademark constitutes a well-known trademark in the services it has approved to use, and the judgment: reject the claim of Phantom Power (bilibili).

Magic Power Company (bilibili) appealed against the judgment of the first instance, arguing that: (1) it is obviously inappropriate for the original judgment to identify the evidence on record in an isolated, mechanical and stereotyped way, which is contrary to the guiding principle of "comprehensive consideration of the whole case" established by the Supreme people's Court in related cases; (2) the evidence on the record is sufficient to prove that the cited trademark is a well-known trademark. (3) the original judgment failed to take into account all the constitutive elements of paragraph 3 of Article 13 of the Trademark Law, as well as the connection and influence among the elements, and the application of the law was wrong.

In the second trial, Magic Power Company (bilibili) submitted a large number of evidence, mainly bilibili's successful marketing cases, financial reports, performance reports, related video playback, search results of "bilibili" and related cooperation agreements.

The second instance of the Beijing higher people's Court held that:

Bilibili, an online video sharing site run by Magic Power, has a large number of users and active users, and its App has been ranked as one of the top 10 popular applications. Station B operated by Phantom Electric not only provides videos uploaded by users, but also plays many anime works, documentaries, movies, TV dramas, etc., by obtaining authorization. At the same time, Phantom Electric also produces or co-produces anime works, variety shows, documentaries, etc., and has a large number of broadcasts. Among them, Magic Power Company has launched a "New year's Festival" program since 2010, which has accumulated a large number of broadcasts before the trademark application date of "bilibili". Many newspapers and media have reported the program of "Happy New year Festival". The Internet platform has the characteristics of fast transmission, wide range of dissemination, flexible and rich content, and the "bilibili" trademark, as the logo of bilibili, after continuous use and extensive publicity, before the food company's "bilibili BILIBILI" trademark application date, in "providing online electronic publications (not downloads); radio and television program production" services are widely known to the public and constitute a well-known trademark.

The trademarks of food companies are composed of the Chinese trademark "BILIBILI'" and the letter "bilibili", which contain "bilibili". The two are similar in text composition and meaning, and most of the relevant public correspond to "bilibili" and Chinese "bilibili". Therefore, the trademark of the food company constitutes the reproduction, imitation and translation of bilibili's trademark.

Although the food company's "bilibili BILIBILI" trademark approved the use of "natural sweetener; cooking glucose" and bilibili trademark under the well-known "provide online electronic publications (non-download); radio and television program production" services do not belong to similar goods and services, but there is a greater overlap in consumer groups, sales channels, publicity methods, and so on. When the relevant public sees the "bilibili BILIBILI" trademark of the food company, it is easy to think of bilibili's "bilibili" trademark. They may mistakenly think that there is a certain relationship between the "bilibili BILIBILI" trademark and the "bilibili" trademark of the magic company, and mistakenly think that the commodity using the "bilibili BILIBILI" trademark is a derivative product launched by the company, or a joint product jointly launched with the company. As a result, it is easy to make the relevant public misunderstand. Even if some of the relevant members of the public do not misunderstand the source of the goods, the aforementioned association of the relevant public will sever the inherent relationship between the "bilibili" trademark and the services provided by the company, thus leading to the damage consequences of weakening the significance of the "bilibili" trademark of the company and harming the legitimate rights and interests of the company.

The court of second instance ruled: (1) to revoke the Beijing intellectual property Court (2021) Administrative judgment No. 12721 at the beginning of Beijing 73; (2) to revoke the Commercial comment No. 151552 [2021] made by the State intellectual property Office on the No. 26264549 "bilibili BILIBILI" Trademark invalidation request. (3) the State intellectual property Office will make a new ruling on the request for invalidation made by Shanghai Magic Information Technology Co., Ltd. on the trademark No. 26264549 "bilibili BILIBILI".

The relevant person in charge of bilibili said that these foods that infringe bilibili's related trademarks mislead consumers and damage their legitimate rights and interests. Bilibili will make continuous efforts to take measures to avoid the proliferation of counterfeit products in the market and ensure that the legitimate rights and interests of consumers are protected.

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