Since 2014, the \”Michael Jordan\” case has been the focal point of fascination in the Chinese IP field. \”Qiaodan Sports LLC\” a Chinese active apparel organization enrolled in the brand name (Reg. No. 6020578) for \”dress; shoes, caps, and so forth.\” in 2010. US sports figure Michael Jordan recorded a nullification suit against this brand name guaranteeing that this imprint encroached his name right and picture right. The respondent contended that:(1)Jordan’s complete name is “Michael Jeffrey Jordan, hence he is not eligible to claim his name right on any subpart of his name for instance ‘Jordan’ part alone neither in English nor it’s Chinese literal interpretation and (2)the human figure was shown in outline and had no facial feature and was simply a shadow which could be anybody, along these lines it is very unlikely for anyone to perceive the figure as Michael Jordon

1. Jordan\’s complete name is \”Michael Jeffrey Jordan\”; hence, he could guarantee rights neither in the \’Jordan\’ part alone nor in its Chinese literal interpretation; and
2. The figures in the imprint were shown in outline just, with no particular facial attributes and simply a shadow which could be anybody, along these lines, it would be improbable for the important open to perceive the figure as that of Michael Jordan.

Apex Incomparable Court at last decided for Michael Jordan, supporting his right case dependent on the Chinese literal interpretation of part of his name.

Chinese literal interpretations for each piece of \”Michael Jordan\’s\” name clarifies that the word part in the contested imprint is like the Chinese literal interpretation of \’Jordan\’. The principle issue was whether \”Michael Jordan\” appreciates representation directly over the figure in the brand name and the name rights over the Chinese part in this brand name. \”Portrait Rights implies the privilege of any subject of a Portrait in his, her or their similarity, individual picture, appearance, individual qualities, or other individual traits\”.

Case Background

On October 31, 2012, Michael Jordan documented \”brand name refutation\” suit (recently called \”brand name question\” before the alteration of China Trademark Law in 2013) in view of his earlier right of individual name and representation;

On April 14, 2014, CNIPA (recently known as \”Brand name Review and Adjudication Board\” before the change of government association) settled on the choice, and chose to keep up the brand name right of the contested imprint;

Michael Jordan advanced against CNIPA\’s choice to Beijing No. 1 Intermediate Court, yet the Court kept up the enrollment of the contested imprint;

At that point \”Michael Jordan\” engaged Beijing High Court against the principal example judgment; on June 18, 2015, Beijing High Court made a judgment that the intrigue was dismissed and the main occasion judgment was maintained.

The primary reasons for CNIPA\’s and Court\’s choices are:

I) \”Jordan\” is an American normal family name as opposed to a name. The proof is deficient to demonstrate that \”乔丹\” contained in the contested imprint unquestionably focuses on \”Michael Jordan\”. Along these lines, Michael Jordan\’s case that :

(i)the contested imprint encroaches his entitlement to name isn\’t legitimate; and 

(ii) the picture ought to plainly mirror the particular qualities of the individual, at any rate to the degree that the general population can, by and large, recognize the representation as a picture of the rights holder or the individual related with it. 

For this situation, the self-perception in the figure some portion of the contested brand name is planned as a shadow, which neglects to unmistakably mirror the highlights of the figure, and it is hard for the significant open to recognizing the picture in the contested brand name as that of \”Michael Jordan\”. In this manner, Michael Jordan\’s case that the contested imprint encroaches his entitlement to picture isn\’t substantial, either.

Decision Ruled by the Supreme Court

For this situation, the Supreme Court affirmed that, as indicated by the proof introduced by Michael Jordan, (for example, distributed papers, periodicals, sites, books and uncommon diaries from 1984 to 2012, preceding the enrollment of the contested imprint), \”乔丹\” was the most widely recognized name for \”Michael Jordan\” in the Chinese media. The first and second occasion judgment by the lower courts was made not as per the realities and ought to be adjusted.

\”Michael Jordan’s lawyer” Jordan\’s lawyer likewise submitted two findings of examination reports. The examination procedure was legally approved by the Notary office. The examination report uncovered that when asked the name \”乔丹\”, an enormous level of interviewees answered they thought of Michael Jordan, and they erroneously accepted there is a connection between \”Michael Jordan\” and \”Qiaodan\” organization. The Court communicated in the choice that the examination method is generally standard, the legitimacy and confirmation of the examination end is moderately high, and the significant realities can be mutually demonstrated with other proof for the situation.

With respect to name rights, the Supreme Court held that:

1. It was exhibited that \”乔丹\” has been generally referred to for a long time as an assignment for \”Michael Jordan\” among the significant Chinese open. In this manner, the Supreme Court inferred that \”Michael Jordan\” appreciates name rights over the Chinese literal interpretation of \’Jordan\’.
2. Before the application date of the contested imprint for this situation, Michael Jordan is a famous figure in China, and his notable extension isn\’t constrained to the field of the ball, and he has become a moderately notable open figure;
3. \”Qiaodan\”, realizing that \”Michael Jordan\” has a long haul and broad notoriety in China, despite everything applied for the enlistment of the contested brand name with \”乔丹\”, which is anything but difficult to pass on to the important open to erroneously feel that the items set apart with the contested imprint have a particular relationship or in some sort related with \”Michael Jordan, for example, support, permit, etc. Consequently, enrollment of the contested imprint encroaches Michael Jordan\’s privilege of the earlier name.

As to right of representation, the Apex Court held a similar demeanor with the Beijing No. 1 Intermediate Court and Beijing High Court. They summed up that the \”picture\” ought to be recognizable, which ought to incorporate the individual qualities of the particular regular individual. The self-perception in the contested imprint is just a dark outline of a human figure, which doesn\’t contain any close to home attributes identified with Michael Jordan aside from the blueprint of the body. What\’s more, Michael Jordan abhors other lawful rights in regard of the activity showed up in the contested imprint, and other nature people can likewise make the equivalent or comparative activity. The picture in the contested imprint isn\’t recognizable and can\’t unmistakably allude to Michael Jordan. Therefore, the case that the enlistment of the contested imprint harms the privilege of picture can\’t be set up.

Council’s Comments

As per \”Article 32 of China Trademark Law\”, an application to enroll a brand name must not preference the earlier privileges of someone else or be utilized unreasonably to pre-emptively register someone else\’s brand name which had earlier use and certain notoriety. This earlier right covers individual names, pictures and business trademarks, just as copyright and configuration licenses – albeit certain variables must be met with the end goal for it to apply.

CNIPA won\’t explore whether a brand name encroaches an individual name directly during an assessment, except if the imprint contains the name of a living political figure – in spite of the fact that applications for such checks might be dismissed altogether in light of the fact that they may have an unfortunate effect on society, under Article 10.1(8) of the Trademark Law. \”Any intrigued individual can document a restriction against a for starters distributed brand name or start a refutation activity against an enlisted mark on the off chance that the person accepts that it encroaches on their encroaches on their name or right\”.

Given names, pseudonyms, stage names and monikers go Given names, fictitious name, stage name in other words any name used for business under name rights. Name right must be asserted by a living individual allowed under Article 32. In such cases the contested brand name ought to be indistinguishable from their name, or be a settled or notable interpretation of their name.

The name rights set out in the Trademark Law are intended to secure human respect, yet additionally the monetary interests of a characteristic individual who appreciates specific notoriety in territory China. The law perceives that the utilization and enrollment of an imprint which is comparative or indistinguishable from an individual\’s name could delude customers into accepting that there is an immediate connection between that individual and the brand name (eg, support or permit). Consequently, the subject\’s notoriety and open consciousness of that person will be a significant factor with regards to deciding if a brand name encroaches another\’s name right. At the end of the day, it is hard to ensure the name of a normal individual from the general population under the Trademark Law.

Different cases demonstrated that regardless of whether a specific name isn\’t the complete name of a characteristic individual or there is no settled one of a kind relationship with this common individual, the name will at present be secured under the Trademark Law if there is a built-up connection between the name and the individual. Further, the pertinent open in China is frequently familiar with alluding to outsiders by the Chinese interpretation or literal interpretation of their last name, as opposed to their complete name – now and again, numerous individuals may in actuality be uninformed of the complete name. This training should along these lines be mulled over when choosing whether an outsider appreciates name rights over the interpretation or literal interpretation of part of their name. In the subject case, while \’Jordan\’ is to be sure a typical last name in the United States, when utilized corresponding to sports and ball specifically (which are the merchandise assigned by the contested imprint), it proposes an immediate connection with Michael Jordan. Subsequently, the Supreme Court at long last presumed that Michael Jordan appreciates name rights over the Chinese literal interpretation of \’Jordan\’, that is, \’乔丹\’.

The other significant point for this situation is that \”Michael Jordan\’s\” lawyer gathered solid proof indicating a steady connection between \’乔丹\’ and \’Michael Jordan\’, also the notoriety of Michael Jordan among Chinese customers. The most supportive bits of proof are the articles identified with Michael Jordan distributed in certain papers, periodicals and sites, books and exceptional diaries, and the authenticated examination reports. The previous can be gathered through leading National Library Search. National Library could embrace to look through totally distributed assets in terrain China, for example, papers and magazines by means of conventional media, and will give an official report with their seal. The probative estimation of such proof is extensively high to show the notoriety of an item in China. Leading examination/poll review is likewise another strategy to show the real turmoil/misconception caused among the applicable open, yet this technique conveys a significant expense.

One proposal from this case is that the invested individual should take convenient measures against the concerned imprints to instantly shield their real rights and premiums. In the subject case, however some of \”Qiaodan\’s\” marks concerning \’乔丹\’ have been negated through activities raised by \”Michael Jordan\”, \”Qiaodan\” still enlisted significant imprints as ahead of schedule as 1991 in various classes, against which as far as possible for recording nullification activities has terminated. Likewise, there is no uncertainty that \”Qiaodan\” continued utilizing the brand names identifying with \”乔丹\” for a long time and furthermore got certain notoriety in territory China; so while inspecting the pertinent cases, the Office will in any case consider their utilization circumstance so as to guarantee decency to the two players. In this way it is hard for Michael Jordan to negate every single pertinent imprint and make a move to totally keep the counter-party from utilizing its enrolled brand name \”乔\”.

-Shubham Arun

KIIT School of Law