Background

According to judgement released on June 17 by Beijing Higher People’s Court, Huawei Technologies won the ‘H’ logo trademark dispute with US sports equipment brand Under Armour.

The decision was made over an appeal by Huawei, which shall be a final judgement of the case. After a fighting for nearly three years for the trademark starting with an appeal to Trademark Review and Adjudication Board, the telecom giant eventually obtained the registration as a second victory since the trademark lawsuit with Chanel.

On September 20, 2017, Huawei Technologies Ltd. filed an application for a graphic trademark for downloadable computer applications etc. in class 9. The logo could be regarded as a letter H made of two letters of U upside down within a circle, referring to the initial letter of the brand ‘Huawei’. However, CNIPA refused the application based on the prior registration owned by an US sports equipment company named Under Armour, Inc. Then Huawei filed an appeal for review before TRAB. After review, CNIPA withdrew the refusal on a part of the designated goods, including smartphones and network communication equipment, but the refusal was maintained on the rest of the applied items.

In 2020, Huawei appealed the decision of trademark review of refusal to Beijing Intellectual Property Court. According to the judgement released, Huawei agreed with the cognizance of similarity between the two trademarks, but claimed the dissimilarity of the trademarks themselves. After trial, Beijing Intellectual Property Court deemed that two purely graphic trademarks were similar in respect of design style and overall visual effect, which made them constitute similar trademarks using on similar products. Then Huawei pursue the case to Beijing Higher People’s Court.

Judgement

The court of second instance held that the trademarks of two parties were not similar on relevant products, and they were different in respect of composition concepts, design style, overall appearance and recognition by relevant public. What’s more, any possibility of confusion on the source of related product caused to the public, an interested party can claim it by opposition or invalidation in the subsequent procedures. Therefore, the court ruled in favor of Huawei. It decided to revoke the decision of the first instance as well as the sued decision by CNIPA.

Determination on trademark similarity 

In its second instance, the Court gave detailed explanations on the issue of controversial similarities between Huawei’s ‘H’ letter and Under Armour’s logo. The court found that Huawei specifies in communication, computer and mobile wearable devices, etc., while Under Armour, the holder of cited trademark in this case, is mainly engaged in business of sport equipment. The applied trademark was made up of a letter appearing as ‘H’ and a circle outside of it, standing for the initials ‘HUAWEI’. The graphic design of the cited trademark consisted of the intersection of letters ‘U’ and ‘A’, based on the name of the registrant Under Armour. Therefore, the two trademarks implied different meanings and compositions.

In respect of design elements, the letter ‘H’ of the applied trademark has an invariant line weight. The lines of the graphic are identical in thickness. As for the logo of Under Armour, it can be found that the lines of both sides are thicker than those in the middle of the graphic. The unequal in thickness of the lines results in an overall difference of two trademarks. The court held that the applied trademark can be distinguished from the cited trademark, and they did not constitute as similar trademarks in respect to the relevant products.  

Comments

From the above case, we may notice that the court upheld the dissimilarity of two trademarks basically referring to the overall appearance of the trademarks, especially in cases involving purely graphic trademarks. When comparing two trademarks and determining whether similarities exist, the courts usually have wider range of consideration than CNIPA and the review board. The court may take the fame of two parties and their brands, the detailed composition and overall visual effect into account. The first impression on two signs may be confusingly similar, but it cannot be the rightful grounds of refusal for registration. After comprehensive comparison and analyzation on possibility of confusion, a trademark in issue may still has a chance of registration, so do not give up any prospective chance to pursue.

Reference:

1. <华为H字母商标终审获法院支持，与安德玛未构成近似商标>: https://mp.weixin.qq.com/s/DHgdw3_191oO-xMvIidrUw

2. <Huawei Wins Trademark Dispute With US Sportswear Brand Under Armour>: https://www.yicaiglobal.com/news/huawei-wins-trademark-dispute-with-us-sportswear-brand-under-armour