Recently, the Beijing Municipal Higher People’s Court issued a second instance judgment on the eight trademarks including “中联大药房” (“China Associate Pharmacy”) (“the contested trademark”) appealed by China Associate (Group) Co., Ltd. (“China Associate”), which reversed the first instance judgment and upheld the registration of China Associate’s core brand “China Associate Pharmacy”.
Senior partner Ying ZHANG and attorney Jiawei WANG of JT&N represented China Associate in the second trial. Attorney Ying ZHANG was entrusted by China Associate in 2010 to handle cases related to the trademark “China Associate Pharmacy”, including application, refusal, opposition, review, cancellation, invalidation, and related administrative authorization, administrative litigation in the first instance, second instance, retrial, and civil infringement litigation. The case has gone through three amendments of trademark law in 2001, 2013, and 2019, and encountered “double jeopardy”. Meanwhile, the China National Intellectual Property Administration broadcasted the evaluation process of invalidation cases to the public. Finally, JT&N helped the Client to register and maintain its core trademark valid.
Basic Facts
A pharmaceutical group was established in the 1950s as a pharmaceutical enterprise; China Associate was established in the 1980s as a pharmaceutical wholesale and retail enterprise. In January 2013, China Associate and the pharmaceutical group applied for the registration of “中联”(“China Associate”) and “中联大药房” (“China Associate Pharmacy”) trademarks in the pharmaceutical wholesale and retail services, and the contested trademark of China Associate was finally approved for registration.
Thereafter, the pharmaceutical group filed two invalidation declarations against the contested trademark, and JT&N represented China Associate in the cases and successfully defended the Client. The pharmaceutical group continued to file lawsuits, and the court of first instance found that drugs and selling services for others were similar to drug wholesale and retail services, and the trademarks of both parties constituted similar trademarks. At the same time, the court of first instance deemed that the contested trademark damaged the trade name right of “中联” (“China Associate”) of the pharmaceutical group. Therefore, the first trial court found that the contested trademark should be declared invalid.
JT&N represented China Associate to file an appeal and carried out meticulous and in-depth work. The Beijing Municipal Higher People’s Court finally held that the aforementioned goods and services did not belong to similar goods or services, that the two trademarks did not constitute similar trademarks, and that the disputed trademark did not damage the trade name of the pharmaceutical group. Accordingly, the court of the second instance held that the contested trademark should be maintained and reversed the judgment of the first instance.
Typical Significance
The judgment of the second instance clarified that the drug manufacturing and drug retailing industries are different industries, and China’s laws and regulations and industry supervision require that the aforementioned industries must obtain separate business qualifications, and the same subject cannot obtain drug manufacturing license and business license at the same time. The judgment of the second instance, in this case, represents the latest judicial view on such disputes, which will provide guidelines for similar cases, offer reference and demonstration significance for trademark disputes between pharmaceutical companies and pharmaceutical wholesale and retail enterprises, and also have reference significance for brand management of such enterprises.
阅读原文