The Supreme People's Court made a retrial ruling to reject the retrial application of Shandong Linyi Kaiyuan Education Equipment Co., Ltd., (hereinafter referred to as Kaiyuan Company), and the respondent Shanghai Yaoji Technology Co., Ltd. (hereinafter referred to as Yaoji Company). 

In September 2017, Kaiyuan Company submitted a complaint to the Intermediate People's Court of Linyi City, Shandong Province, requesting confirmation that the pattern used by Kaiyuan Company on the jokers of the "Jinjiu" playing card did not infringe the exclusive right to use the registered trademark No.3727456 of Yaoji Company. 

Registered Trademark No.3727456 of the Defendant Yaoji Company

Kaiyuan Company believes that: 1) the use of pattern on the jokers of the playing cards does not constitute the usage in the sense of Trademark Law. 2) The English meaning as well as the pattern of  "JOKER" of playing cards belong to a universal design element around the world, which, when used as trademark on the playing cards, does not constitute distinctiveness. 3) The plaintiff applied the registered trademark or enterprise name in a prominent position and had took active measures to ensure that the consumers may distinguish the source of production. 

Therefore, Kaiyuan Company filed a lawsuit with the court of first instance and requested the court to: 1. Confirm that the pattern used by Kaiyuan Company on the "Jinjiu" playing card jokers does not infringe the exclusive right to use Yaoji Company's registered trademark No. 3727456; 2. Judge that the legal costs of the case shall be borne by Yaoji Company.

The courts held in the cases of first instance, the second instance and the retrial (the Supreme Court) that: 

Playing cards are different from other commodities, which belong to a special commodity. Of all the 54 playing cards produced by different manufacturers, there are 52 cards which might adopt the same design, while only the joker cards might be different. 

Therefore, the joker cards are the major basis to distinguish the sources of commodities. Although the jokers of playing cards are placed in opaque packages, which may not be seen by consumers when being purchased, they will be obviously exposed to consumers' sight during usage. Therefore, consumers may perceive a certain connection with Yaoji Company when playing the cards. 

Although Kaiyuan Company uses the registered trademark or enterprise name of the entrusting party on playing cards, the infringing patterns on the joker cards almost occupy the whole face of the card, and their identifiability is much higher than that of the text part, which cannot play the role of making the relevant public pay attention to the text trademark or enterprise name. 

Therefore, Kaiyuan Company constitutes an infringement of Yaoji's exclusive right to use a registered trademark. Therefore, the patterns used by Kaiyuan Company on playing cards infringed Yaoji Company's exclusive right to use registered trademarks. On such ground, the plaintiff's claim was rejected.

Case Summary: 

The possibility of confusion of traditional trademarks generally refers to the confusion of the source of goods when consumers buy them. With the development of trademark law theory and judicial practice, the concept of trademark confusion possibility has been extended to such types as initial interest confusion, association confusion and after-sales confusion. 

The so-called after-sales confusion means that consumers do not develop confusion about the source of the goods when purchasing the goods, but other onlookers may confuse about the source of the goods when seeing the buyers use the goods. After-sale confusion is a kind of bystander confusion. The current Trademark Law does not clearly stipulate after-sale confusion, but it has been applied in judicial practice.