• Sunday, October 04, 2015

Michael Jordan's trademark suit rejected by Beijing court

Howard Shih 2012-03-01 11:53 (GMT+8)
Qiaodan Sports sneakers on sale in China. (Photo/Xinhua)

Qiaodan Sports sneakers on sale in China. (Photo/Xinhua)

NBA legend Michael Jordan's trademark lawsuit against Chinese apparel and footwear maker Qiaodan Sports has been rejected by a Beijing court.

Jordan, 49, took legal action against Qiaodan, one of China's largest sports brands, on Feb. 23. Jordan claimed that the brand "deliberately and aggressively" used his name without permission and misled customers into thinking that he had authorized its products.

"Qiaodan" is the former NBA superstar's Chinese name, a transliteration of "Jordan" widely recognized in China. Qiaodan Sports also uses Jordan's number 23 jersey and a symbol similar to Nike's iconic Air Jordan "Jumpman" logo on its merchandise. A 2009 study conducted by a Shanghai marketing company found that 90% of the 400 local people surveyed believed Qiaodan Sports was Michael Jordan's brand.

Yet a Beijing court refused to accept Jordan's claim on Wednesday, saying his surname is neither distinctive nor unique.

In rejecting the case outright, the court has implicitly agreed with what appeared to be a brazen statement from Qiaodan Sports: "There are so many Jordans besides the basketball player," said a Qiaodan representative when the claim was first announced. "There are many other celebrities both in the US and worldwide called Jordan." The spokesperson also said that Jordan's jersey number is "just a number."

The rejection also highlights the difficulties that lie ahead for His Airness if he decides to continue pursuing the matter.

Sources have revealed that Nike, which markets the Air Jordan brand in China, failed in earlier attempts to get China's trademark office to ban Qiaodan Sports from selling under the name. Nike registered a trademark for "Jordan" in the country in 1993 but did not register the Chinese version, enabling Qiaodan Sports to successfully apply for it in 1997.

Chinese trademark law only unequivocally protects the names of famous public figures such as Chinese political leaders. For famous people not in the public sector, protection is afforded by Article 31 of the Trademark Law of the PRC, which states that "an application for registration of a trademark shall not create any prejudice to the prior right of another person, nor unfair means be used to preemptively register the trademark of some reputation another person has used."

This was the same article relied upon by Chinese basketball stars Yao Ming and Yi Jianlian in successful claims against companies that used their names in trademarks without authorization. In those cases, the court found that an "individual's name right should be recognized as a prior right."

Even if Jordan could prove that his name is a "prior right," a further obstacle is that his right to challenge may be time-barred; Article 41 of China's trademark law document requires that any disputes of registered trademarks must be brought within the first five years of registration. Given that the "Qiaodan" mark was submitted for approval in 1997, the statute of limitations has already long passed.

Jordan, who claims he was unaware of the Qiaodan brand until recently, could seek to bypass the five-year limit by establishing that his name is a "well-known mark," which does not have to be registered to be enforceable. However, he still faces an uphill battle as this area of law is highly contentious, and especially as Qiaodan Sports has already managed to establish a sizable presence in China over the past decade. To complicate matters further, "Qiaodan" was itself declared a well-known trademark by China's trademark office in 2009.

A spokesman for Jordan's legal team told the Shanghai Daily on Wednesday that it had not yet received notice of the rejection. Sources say Jordan will refile the claim in Shanghai.




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Li Jiheng (李紀恒)

Li Jiheng is the Communist Party secretary of Yunnan province in China's southwest, where he had previously been the provincial governor and held leading government posts in Pingnan and Guiping ...