DSM Intellectual Property Assets Limited (hereinafter referred to as DSM Company) is the global intellectual property manager of Royal DSM Group. On June 14, 2004, Lou Yuebin and parties concerned applied for registration of trademark No.4115813 (hereinafter referred to as the trademark in dispute), which was announced on October 14, 2007 in the Class 28 (Game console; Toys; Solitaire; Sports equipment; Fishing tackle; Sports balls; Competitive gloves; Grip strength device; Decorations for Christmas trees (except lighting articles and candy); Exercise equipment). DSM Company claimed objection on the grounds that trademark in dispute seriously infringed the prior copyright of its G666717 "DYNEEMA" text prior trademark and graphic combination works. However, in the course of the trademark objection, objection review and administrative litigation of first instance and second instance, DSM failed to gain support from the Trademark Office, the Trademark Review and Adjudication Board, Beijing No.1 Intermediate Court as well as the Beijing High Court. 

In 2014, DSM filed an application for retrial with the Supreme Court, which was heard in December 2017. The Supreme Court found that the application for the trademark in dispute violated Articles 28 and 31 of the Trademark Law of 2001 and should not be approved for registration. 

Main Grounds of Ruling

(I) Whether the goods designated by the trademark in dispute and the cited trademark belong to similar goods

In this case, the cited trademark is approved for usage under Class 17 (Semi-processed plastic fibers and threads), which seems to be apparently different from the approved product categories of "game consoles and fishing tackle" used by the trademark in dispute. The evidence provided by DSM shows otherwise, that the fiber products actually used by the trademark in dispute are widely applied in production of special materials including bulletproof products and fishing gear products, which belongs to well-known high-quality raw material for fishery products such as fishing nets, trawls and fishing lines, and has gained high reputation in fishing gear industry, material industry or fishing enthusiasts. It is highly coincident with the "fishing tackle" products designated by the trademark in dispute in terms of performance, use, sales channels and consumption objects. At the same time, relevant evidence and common sense of life also show that, as raw materials for fishery products, the performance of fiber products determines the performance of fishing gear and fishing tackle products, while it is a common practice for fishing gear products to publicize and introduce fishing gear and other products by introducing the source characteristics of fiber materials or marking the source of raw materials on the corresponding products. Therefore, the relevant public may be easily mislead about the sources or to think that there are specific connections. 

(II) Whether the trademark in dispute is an infringement of the prior copyright of another person's work

First of all, the works advocated by DSM Company are composed of "Dyneema" characters and curve graphics, wherein curve graphics are the graphic expression of fiber threads, and the combination of graphics and characters composed of original "Dyneema" characters is original and constitutes art works in copyright law. 

Secondly, DSM's claim that Ten International B.V. is the author of the work is admissible, because there is no evidence to the contrary, and it can be corroborated by other evidence. The ownership of the copyright of the commissioned works shall be stipulated in the contract, and the rights not agreed shall belong to the trustee, who shall have the right to use them within the scope agreed in the contract. In this case, there is no evidence to prove that the principal and the trustee have made a clear agreement on copyright matters, and the copyright should belong to the trustee. In view of the fact that the trustee is a legal person, the protection period of the right of this work is 50 years from the date of publication of the work, and the previous work in this case is still within the validity period of copyright and should be protected by copyright law. As mentioned earlier, according to the available evidence, DSM cannot be regarded as the copyright owner of the work, but DSM has at least the right to use the work by trademark. As to whether this right belongs to exclusive right or not, according to the purpose of trademark entrustment creation contract, the subject matter of creation belongs to commercial logo, and under normal circumstances, the principal has the right to exclude the use of trademark including trustee. Therefore, in the absence of an agreement to the contrary, the principal DSM Group can be deemed to have the exclusive right to use it as a trademark. 

This case has gone through fifteen years from the start of objection procedure in 2004 to the end of retrial procedure. Through this case, the Supreme Court made it clear whether applying for trademark registration damaged the prior copyright of others, shedding light on the principle of judging copyright infringement in copyright law, namely, examining and judging whether the object of claim constitutes a work, whether the prior obligee is a copyright owner or an interested party, and whether the trademark in dispute constitutes an infringement of the prior copyright.