Recently, the Beijing High Court decided that the graphic trademark applied for registration by Huawei Technologies Co., Ltd. is not similar to the graphic trademark of Under Armour Inc.

In September, 2017, Huawei Technologies Co., Ltd. applied for registration of Trademark No.26522076   (hereinafter referred to as "the trademark in dispute"), which was rejected by the prior trademark, wherein the cited prior trademark 4 was the trademark No. 8541511  registered by UNDER ARMOUR, Inc. (hereinafter referred to as "cited trademark 4"). 

After refusal reexamination, the CNIPA held that the trademark in dispute and the cited trademark 4 constituted similar trademarks on commodities such as recorded computer programs, and decided to refuse the application for registration of the trademark in dispute on the reexamined commodities. In response, Huawei expressed dissatisfaction and filed a lawsuit with the Beijing Intellectual Property Court. The Beijing Intellectual Property Court held that the trademark in dispute and the cited trademark 4 are both pure graphic trademarks which share the similar design style and overall visual, so the trademark in dispute and the cited trademark 4 are similar in composition, hence the court decided to reject Huawei's claim. 

Huawei Company (hereinafter referred to as "the Appellant") refused to accept the original judgment and appealed to the Beijing High Court. The Beijing High Court held that: the major practice of the trademark applicant Huawei includes communications, computers, mobile wearable devices, artificial intelligence and other businesses; the registrant of cited trademark 4 is UNDER ARMOUR, Inc., which is mainly engaged in sports equipment businesses. According to the appellant's statement on the design of the trademark in dispute, its periphery is a circle, with the letter "H" formed inside by two spliced “U” symbols, representing the initials of Huawei's main logo "HUAWEI". The graphic design of the cited trademark 4 is formed by intersecting the initials U and A of the English name "UNDER ARMOUR" of the registrant UNDER ARMOUR, Inc. Through its use in class 25 (clothing and other commodities), the Chinese consumers have associated the graphic design with "安德玛". Meanwhile, in view of the appearance, the trademark in dispute uses lines with uniform thickness, while the cited trademark 4 obviously adopts inconsistent lines.

Therefore, from the aspects of composition elements and design manifestation of graphic trademarks, the composition concepts of the trademark in dispute and the cited trademark 4 are different, which is also the case with the design style, the overall appearance and relevant public memorization. If the two marks are used in downloadable computer application software and other class 9 commodities, they can be distinguished.

Moreover, the trademark in dispute has not yet been preliminarily examined and approved. If there is a possibility of confusing with other’s prior trademarks in market, the other party can file a claim separately through objection or invalidation procedures.

Therefore, the trademark in dispute and the cited trademark 4 do not constitute similar trademarks. The original judgment and the sued decision are not properly determined. They should be corrected to support Huawei's relevant appeal reasons. Therefore, the CNIPA was ruled to make a new decision on Huawei Technologies Co., Ltd. 's application for refusal reexamination of graphic trademark No. 26522076.