Over 100 Transactions Characterized as Symbolic Use Without Real Intention of Use, Unitalen Successfully Reversed the Case in the Second Instance to Revoke the Preemptively Registered "EVISU" Trademark

January 27, 2022

Recently, Unitalen represented Gear Up International Limited, the owner of the well-known fashion brand "", and won the final judgment at Beijing Higher People's Court in the administrative litigation case of the revocation review of trademark "EVISU" preemptively registered by Luo, after trials of the revocation for cease of use for three consecutive years, revocation review, first instance, and second instance.

Case Brief:

The trademark in dispute "" is a registered trademark by a natural person named Luo on Class 9 "loudspeakers, microphones, headphones, insert earphones, audio connectors, portable media players" and other goods. In order to prove the actual use of the trademark, the registrant has submitted the notarized certificates of more than 100 sales of goods with the disputed trademark. The Beijing Intellectual Property Court determined in the first instance that these evidence could prove the actual use of the disputed trademark on goods such as "insert earphones", and maintained the effective registration of the disputed trademark.

In the second instance, Unitalen attorneys carried out in-depth investigation and analysis. First, they analyzed in detail the online store sales records recorded in the notary certificates and found out the multiple contradictory and conflicting order information and proved that there were acts of click farming between affiliated companies. Such acts of click farming online which were not for real transaction purpose or which were for an improper purpose should not be identified as an act of using the trademark that can maintain the registration of the disputed trademark. Second, the attorneys presented evidence to prove the following facts: the time when the right holder planned to purchase the disputed trademark from the registrant of the disputed trademark, the time of more than 100 online transactions using the disputed trademark, and the evidence for that the registrant of the disputed trademark used to provide help for the crime behavior of selling the "earphones" goods with the counterfeit registered trademark. All of these played a key role in the court's judgment on whether the registrant had a real intention to use the trademark subjectively, which further consolidated that the registrant did not have a real intention to use the disputed trademark. Therefore, although the number of transaction records of the disputed trademark seemed to be quite large, the transaction of these "insert earphones" goods was a symbolic transaction carried out to maintain the trademark registration, which was not enough to produce the legal effect of maintaining the effective registration of the disputed trademark.

Typical Significance:

This case breaks through the conventional nature determination of symbolic transaction behavior. Through the multi-party investigation and evidence of the attorneys, "the symbolic transaction is determined by the false transaction records formed by click farming or related party transaction", which proves that the use evidence without the real intention of use in essence cannot be identified as valid evidence of trademark use even if it is dressed in a legal form of evidence.