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Trademark Infringement and Unfair Competition Case against Shenzhen ＂Century Baoma＂ Represented by Unitalen Elected as the“Ten Best Practices in Intellectual Property Protection in 2009 of the Supreme People’s Court＂

June 8, 2010
The trademark infringement and unfair competition case BMW vs. Shenzhen Century Baoma represented by trademark attorneys Ma Qiang and Zhang Yazhou from Unitalen was chosen by the Supreme Court as Ten Best Practices in Intellectual Property Protection 2009.
The 10 Best Practices were elected through screenings and recommendations of courts at various levels, which not only solve some universal difficulties in the application of law but also have great social influence. Prior to this, the case was also honored as the ＂Ten Best Practices in Intellectual Property Protection 2009-2010 of Quality Brands Protection Committee of the Association of Enterprises with Foreign Investment．＂

Case Review:

The Plaintiff BMW AG (hereinafter referred to as BMW) is one of the world's leading automobile manufacturers. The three trademarks of BMW,＂BMW＂, ＂BMW ＆Device＂ and ＂Baoma＂(Chinese version of BMW) are registered in China in class 12 in connection with "motor vehicles, motorcycles and parts thereof". The defendants Shenzhen Century Baoma　Fashion Co., Ltd. (hereinafter referred as ＂Century Baoma＂) and JiaRunDuo Business Co., Ltd．used trademarks ＂MBWL ＆ Device＂and ＂MBWL＂in the products and the trade name＂Century Baoma＂ which contains＂Baoma＂. The defendant Fu Xianqin， as an employee of ＂Century Baoma＂，provided her own bank account for the company only for the purpose of receiving money from the franchise stores. In the ruling, the Hunan Higher People's Court recognized the three registered trademarks of BMW as well-known. It is ruled that as a well-known trademark rights holder, the plaintiff is entitled to legal protection. The Defendant Century Baoma used trademarks “MBWL ＆ Device” and “MBWL” in the products as well as the trade name＂Century Baoma＂, which has caused confusion on the part of the relevant public. The employee Fu Xianqin was also ruled as trademark infringement and unfair competition for providing her bank account for infringement use after having known the company’s infringing activities. The defendants were ordered to stop infringing activities immediately and to eliminate the ill effects as well. Century Baoma and Fu Xianqin were ordered to make a compensation of 500,000 Yuan for the losses of the plaintiff. The ruling has become effective since the parties did not appeal after the first instance decision.

Significance:

This case concerns the legal protection of well-known trademark and trade name. The ruling effectively curbed the unfair activities of taking free ride on the high reputation of famous brands. In this case, the court recognized the plaintiff’s trademarks as well-known after considerations of their identifications and reputations and confirmed the infringement nature of the activities taken by the defendants. In addition, according to the court ruling, Century Baoma has bad faith in using the plaintiff’s trade marks and trade name and the use of the similar marks MBWL & Device has obviously violated the doctrines of good faith and unfair competition, misled the relevant public and constituted unfair competition.

　

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