Someone cybersquat " Kiehl´s " and together with the authorized company to sue L´Oreal licensing infringement, claiming one million yuan . Recently, the Haidian Court judged this case that Mr.Li's petition is rejected.
L´Oreal case review: Personal accuse L'Oreal of trademark infringement.
In 2009, Mr. Li was registered " Kiehl's" trademark , and in the same year authorized Guangzhou Wangsha Fine Chemicals Ltd. (Wangsha for short hereinafter) to use the trademark. However, in daily life, " Kiehl´s " is the Chinese translation of L´Oreal Kiehl´s trademark which is widely used.
Mr.Li and Wangsha believes that the unauthorized use of L´Oreal Kiehl´s on its website and map as page title , keywords and page description , setting own web search keywords of Kiehl´s and paying to the Internet Kiehl's as their key words in Baidu operating sites to promote, has casues publicon confusion about the brand and product, which eroding its business opportunities , and constituted trademark infringement. Thus, Mr.Li and Wangsha came to court and required L´Oreal and Baidu to stop infringement, and pay for damages more than 100 million CNY.
After the judge, the court considered that successfully registeration trademark of the applicant does not mean that person is not entitled to use the earlier use of the relevant text . Before Mr.Li had the trademark registration , L´Oreal has been using the " Kiehl´s " as its trademark and Kiehl´s in translation or with "Kiehl´s in common useand has a certain reputation, which has constituted prior use . Therefore, the court dismissed the claims of Mr. Li and Wangsha.
Judge opion: prior use is the criterion
Judge explained that whether consitute prior use is generally considered from four aspects: first , before you apply for trademark registration, unregistered trademark people have prior use ; Second , prior use of the trademark after registering with the same or similar trademark , and similar or same goods or services ; third, prior use trademark must have some influence ; fourth , prior use must be well-intentioned .
Judge said that in this case , " Kiehl´s " and products have approximation with L´Oreal and its products. Moreover, L'Oreal has used Kiehl´s for a certain reputation. Therefore, after judging whether L'Oreal and its related company has prior use, and the purpose of free-riding, and whether to make consumer confusion and mistakes, the court judged that the two accusers claiming L´Oreal brand " Kiehl´s " case does not constitute trademark infringement.
Morning News reporter Peng Xiaofei
■ Legal Terms
According to relevant laws and regulations , prior use of trademark is before the application for trademarks registration, unregistered trademarks of prior use of people who have been using prior to the registration of trademarks and registered trademarks in the same or similar to the same kind of goods or similar goods and trademark rights and have a certain influence. In this case, unregistered trademarks people who have prior use can continue to use the trademark, registered trademark shall have no right to prohibit the use of unregistered trademarks in use scope of the trademark, but registrant can request additional appropriate distinction on the trademark logo.