CPA Wins AESCULAP Trademark Case on Behalf of Braun Medical Shanghai
China Patent Agent (H.K.) Ltd. (CPA) has successfully defended the rights of its client B. Braun Medical (Shanghai) International Trading Co., Ltd. in a trademark dispute case. The case relates to the mark "AESCULAP" ("ASCLEPIUS", the Greek God of medicine, often depicted with his serpent entwined staff) & device used on medical instruments produced by the renowned German group B. Braun Melsungen AG.
Braun Shanghai, since its inception in 1999 in Shanghai, has been the importer and distributor of said medical instruments, generally referred to as "德国蛇牌" (GERMAN SERPENT BRAND in Chinese) in the Chinese market. In 2012, two Chinese companies in Beijing filed a lawsuit in Beijing Municipality Haidian District People's Court, accusing Braun Shanghai of infringing their rights in the mark "蛇" (SERPENT in Chinese) of No. 1372020 and No. 5838424 filed for registration in 1998 and 2007 respectively. The plaintiffs requested for discontinuation of the infringement and demanded damages of RMB4.9 million.
In defending the client's rights during the trial in August 2012, CPA's attorneys pointed out that the evidences submitted by the plaintiffs were unable to support their claims, in particular the allegation that Braun Shanghai's selling of the designated products had caused confusion to the public. CPA attorneys also presented before the court evidences in support of Braun Shanghai's prior use of the representation "蛇牌" (SERPENT BRAND in Chinese), and pointed to the plaintiffs' malicious registration and use of the mark "蛇" given the prior existence of the industry-wide reputed "德国蛇牌".
The court in trial ruled in favour of Braun Shanghai and ascertained the legitimacy of its use of "蛇牌" in selling the designated products, which was prior to the approved registration of the plaintiffs' marks. The ruling also supported that the relevant public in this case were professionals, who possessed keen discerning power in recognition of representations of marks. Finally, for the reasons that "蛇牌" was not used conspicuously in the manner of a trademark on the designated medical instruments, and the products were identified by the serpent device and the mark "AESCULAP", the likelihood of causing confusion or misleading was relatively slim.
