Jordan v Qiaodan - or how the Chinese press may hurt or help your trademark case

China

'Qiao Dan' is the Chinese translation of the last name of legendary basketball player Michael Jordan. Since the National Basketball Association (NBA) became extremely popular in China in the 1980s, the name Qiaodan has been widely known in the country. However, this name has also caused a storm in the Chinese legal world in recent years, with Michael Jordan suing a Chinese company called Qiaodan Sports Co Ltd for infringement of his right of name. This case has gone on for two years, and the court is finally close to making a decision.

The lawsuit has attracted great attention in China with regard to several aspects. Local company Qiaodan Sports Co Ltd was founded in Jinjiang, Fujian, a town known for the manufacture of knock-off sports shoes in the 1980s. The company was renamed Fujian Qiaodan Sports Equipment Ltd and began using the QIAODAN trademark, both in Chinese characters and as the pinyin 'Qiaodan' with the logo of a basketball player, in 2000. Then, in 2009, the company was reorganised and adopted the name Qiaodan Sports Co Ltd. In 2012, just as Qiaodan Sports was about to apply to become listed in the Shanghai Stock Exchange, Michael Jordan sued the company for infringing his right of name. Qiaodan Sports’ initial public offering plan was delayed, partly due to the tight regulatory controls.

The case has caught the attention of many media and legal experts, and most of them have been able to present the situation to the public in an impartial way. However, as the date of the final court judgment draws near, other voices have emerged.

In June, a major financial newspaper published an article entitled “The TRAB and legal experts firmly support Qiaodan Sports”, which aimed to convince readers that Qiaodan sports should easily win the case. In the opening paragraph, the author sets the tone of the entire article: “the case… has been in progress for two years, and Qiaodan Sports, which has always operated honestly within the regulations, has been hurt greatly”. In the second paragraph, the author explains that the company chose the name Qiaodan “without too much thought”, put in huge efforts to build its own unique brand, had “never used” the name Michael Jordan and had even “purposefully emphasised the fact that it had no relation with the NBA player”.

The author then went on to cite two authorities. The first was the Trademark Review and Adjudication Board of the State Administration of Industry and Commerce, which has already ruled several times against Nike and determined the legitimacy of the trademark of Qiaodan Sports. The second was the “unanimous” support of a dozen legal experts for Qiaodan Sports. To show the weight of this support, the author quoted the names of several famous Chinese legal experts, including two big names - Ping Jiang and Handong Wu.

According to the newspaper, the two authorities had the same opinion: the name Jordan is a common last name in western countries and cannot create an association with Michael Jordan. In addition, 'Qiaodan' could be seen as substantially different from the name Michael Jordan and its Chinese translation, 'Maikeer Qiaodan'; there was no indication that the relation of Michael Jordan to the name Qiaodan was stronger than that of Qiaodan Sports to the same name. Further, Michael Jordan could not back up his claim that "Qiaodan Sports misled consumers” with sufficient evidence. The author concluded that, based on this reasoning, Qiaodan Sports should be able to win the case easily.

The author also stated in the article that “experts have called for the court to rule that Qiaodan Sports does not infringe the right of name of Michael Jordan and that the plaintiff's lawsuit should therefore be rejected”. This sentence is repeated and paraphrased many times throughout the article.

This article appears to be extremely one-sided. It presents only the evidence that supports the author's position and ignores all other. Interestingly, when typing the keywords “Qiaodan Sports winning the case” in many popular Chinese search engines, almost all the results either provide a link to the article mentioned above or cite parts of it, such as the sentence “unanimous agreement among legal experts” (obviously seen by many as an authoritative opinion).

While the authors do not judge the merits of the case itself, the way the Chinese press has supported a party here makes one wonder how media relationships should be handled in highly contentious cases in China. Experienced litigants would agree that dealing with the Chinese press presents a tough challenge, especially when one party turns to the press for 'help'. This happens to both domestic and foreign parties. Sometimes parties simply seek fame or media attention, regardless of the final outcome; however, many companies believe that the golden rule is to remain silent. This might be true because the public tends to have a short memory and, more importantly, because the press may give a party more attention after it gives a response. How the court will rule in the Jordan case remains to be seen. 

He Jing and Zhang Zhixing, AnJie Law Firm, Beijing

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