Press Enter to Center block

Intellectual Property and Commercial Court



Decision No. 2008-Xing-Zhi-Shang-Yi-28
Date November 6, 2008
Decision Highlight

The registered trademark at issue was applied for by the accuser on February 24, 1996; registration was approved and published on March 16, 2007. According to Article 27, paragraph 1 of the Trademark Law, the accuser has obtained trademark right from the date that the registration was published (that is, March 16, 2007); the defendant has been bound by the exclusive right of the registered trademark since that date. The “Baby Egg” hair spray sold by the defendant is labeled with “Baby Egg” trademark and is the same kind of goods as the registered trademark is designated to use on. Yet as stated above, the defendant has sold “Baby Egg” hair spray before or since Aug. 31, 1995 (earlier than the date when the accuser applied for the registration of the mark at issue), and has met the requirements of fair use. This use, according to Article 30, paragraph 1, subparagraph 3 of the Trademark Law, is beyond the exclusive right of the trademark at issue and does not constitute of the crime of selling goods with a counterfeited trademark.

Related Provision Articles 27 and 30 of the Trademark Act
  • Release Date:2020-11-13
  • Update:2020-12-03