Recently, in the case of trademark infringement dispute between Hunan Broadcasting System (hereinafter referred to as the "defendant" or "Hunan System"), Hunan Mgtv.com Interactive Entertainment Media Co., Ltd., Beijing Iqiyi Technology Co. Ltd. (hereinafter collectively referred to as the "defendant", represented by Unitalen) and Beijing Shenlinqijing Culture Co., Ltd. (used name: Beijing Taiyangguangying Film and Television Technology Co., Ltd., hereinafter referred to as the "plaintiff"), the Beijing Haidian People's Court determined that the defendant's use of the alleged infringing mark in the broadcasting and promotion of the program involved in the case was insufficient to cause confusion among the relevant public about the involved trademark and the alleged infringing mark, and the claim that the three defendants infringed the exclusive right to use the trademark Shenlinqijing lacks factual and legal basis. The judgment rejected all plaintiff's claims, and the case acceptance fee of 82,765 yuan shall be borne by the plaintiff. The plaintiff in this case withdrew the appeal after appealing, and the first-instance judgment has come into effect.
Hunan Broadcasting System is a department-level media institution directly under the Hunan Provincial Governmental Committee. It was restructured from the former Golden Eagle Broadcasting System and was established on June 28, 2010. "The Sound" is an original voice charm competition variety show independently produced by the defendant, Hunan Broadcasting System This variety show mainly consists of three sections: the first section is "Classic Voice", which allows the guests to dub classic films and animation clips, the second section is "Magic Voice", where the guests challenge eloquent lines or dubbing, and the last section is "Voice Show", which is a live sound stage play performed by the guests together. The TV program "The Sound" is based on voice, and voice workers such as voice actors are invited to perform live competition in a special form of "seeing no man and hearing only the voice".
The plaintiff is the holder of the trademarks nos. 12253086 "身临其境" (shenlinqijing), 10284337 "身临其境" (SHEN LIN QI JING), and 22297784 "身临其境" (shenlinqijing) (hereinafter collectively referred to as the involved trademarks). The plaintiff believes that Hunan System has, without the permission of the plaintiff, used a large number of words and marks of "声临其境" (shenglinqijing) that are similar to the involved trademarks in the TV program "The Sound" produced and presented by Hunan System, and filed the following claims to the court: (1) the three defendants shall immediately cease infringing the trademark rights of Shenlinqijing, that is, shall immediately cease using marks and words that are identical or similar to the trademark nos. 12253086, 10284337, and 22297784 for Shenlinqijing; (2) Iqiyi, on the homepage of iqiyi.com, and Hunan System and Mgtv.com Interactive Entertainment Media Co., Ltd., jointly on the homepage of mgtv.com and on the homepage of sina.com, shall publish a statement to eliminate the adverse effects of the three defendants' trademark infringement on Shenlinqijing; and (3) the three defendants shall jointly compensate Shenlinqijing for economic losses of 10 million yuan and reasonable expenses of 152,500 yuan.
Unitalen attorneys represented Hunan System and Mgtv.com Interactive Entertainment Media Co., Ltd. in the defense, and firstly argued from five perspectives there was no trademark infringement in this case ; and secondly, even if there is infringement as alleged, the advertising revenue of the involved program has no causal relationship with the involved trademarks of the plaintiffs' companies. The court finally upheld our arguments and rejected all the plaintiff's claims.
In this case, it is determined that infringement is not constituted mainly from two perspectives: although the trademarks are similar in sound and form, the meanings can be fully distinguished and thus similarity, confusion and misunderstanding (including confusion and reverse confusion) are not constituted. Besides, the plaintiff’s registered trademark in Class 38 has not been used in commerce for 3 years, and as a result the trademark "has no value for protection." The first broadcasting of the accused program was earlier than the time when the trademark was approved for registration, and it is determined that the involved program did not infringe the registered trademark and is innovative.