Closing Information
Beijing Intellectual Property Court concluded the first instance of administrative case that requests for invalidation of the trademark right of "Arena of Valor" On June 17, 2020, and found that the application for registration of the disputed trademark had damaged the prior rights and interests of the game title of "Arena of Valor". The verdict revoked the defendant's ruling and ordered the defendant to make a new ruling.
Commercial Judges (defendant of first instance)
The State Intellectual Property Office ruled that the disputed trademark should be maintained on the grounds that the trademark No. 18379954 of "Arena of Valor" (hereinafter referred to as the disputed trademark) and the cited trademark is not an approximate trademark on similar goods, and the registration of the disputed trademark hasn’t infringed upon the copyright of Tencent Company, nor has it constituted the provisions of the first paragraph of Article 44 of the Trademark Law of People's Republic of China (hereinafter referred to as the Trademark Law).
Tencent Company (plaintiff of first instance)
The game of "Arena of Valor", which has been in operation since October 2015, gains its popularity as soon as it is launched.
Moreover, Tencent Company has actively cooperated with McDonald's and Coca-Cola in areas such as beverages and catering, which are closely related to the approved use of disputed trademark. The players of the game are almost the same with the customers in beverage, alcoholic beverage, catering and other related fields.
The use of the disputed trademark as a trademark registration on the related goods damages the prior right on game title of "Arena of Valor" enjoyed by the plaintiff, and violates the provisions of Article 32 of the Trademark Law.
The plaintiff also argued that the behavior of registering the trademark is obviously malicious and intends to obtain illegitimate commercial interests. To sum up, the court is requested to rescind the verdict and order the defendant to make a new ruling.
Beijing Intellectual Property Court insists that
The application for registration of the disputed trademark harms the prior rights and interests on game title of "Arena of Valor" enjoyed by plaintiff, violates the provisions of Article 32 of the Trademark Law, and does not constitute the circumstances stipulated in the first paragraph of Article 44 of the Trademark Law. Therefore, a judgment is made to withdraw the commercial judge’s decree.
—— The Second Trial Division of Beijing Intellectual Property Court
Consultant from Asia Smart Intellectual Property Agency Co, Ltd. (Asia Smart) commented on the key points of the case for you.
In the judgment of first instance, Beijing Intellectual Property Court who supported the title rights of the game and thus revoked the registered trademark, are mainly based on the following factors:
First, the game title has a great popularity
1. The title of Baidu search index is very high.
The title of search index peaked at 150, 000 on October 28, 2015.
2. The game ranked first on the "free list" on the first day of being launched, as well as continuously reporting its increasing popularity and game-related awards.
3. It cooperates with well-known enterprises in sort of products that are related to the game.
Tencent Company has actively cooperated with McDonald's and Coca-Cola in areas such as beverages and catering, which are closely related to the approved use of disputed trademark. The players of the game are almost the same with the customers in beverage, alcoholic beverage, catering and other related fields.
Second, the game title is highly recognizable.
Third, the players of the game are the same with the customers of liquor.
The 33rd category of goods such as "fruit wine (alcoholic), liquor and wine" used in the disputed trademark are also commodities in daily life, and there is a high degree of overlap between the customers of this kind of goods and the game players. The registration as a trademark and the use in commodities such as liquor can easily lead the relevant public to mistakenly believe that the goods such as liquor are the goods of the plaintiff or there is a specific relationship with the plaintiff.
Fourth, the launch the game is earlier than the application of the trademark registration.
The launch of the game "Arena of Valor" is earlier than the application of the trademark registration, and the documented evidence shows that the game has received widespread attention since the very beginning of its launch.
Fifth, the trademark applicant has the malice of preemptive registration.
The third party applied to register a number of trademarks with the words "Arena of Valor", "Arena" or "Valor", and the legal representative also served as the legal representative of Guizhou Arena of Valor Wine Industry Co., Ltd. Based on this, it can be seen that the third party's application for registration of the trademark is subjective and malicious.
Dear applicants, are you now clear that even if the title of a famous game is registered successfully, there is still a risk of being invalidated?
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