Decade-long QQ trademark dispute receives final verdict

Tencent also alleged in court that Chery used the influence of QQ and its well-known logo penguin image for promotions, which "infringed on its trademark rights".

The court found that Tencent established a reputation in the telecommunication service domain, but this could not be extended to the auto sector, even if it was merely as a defensive registration. The court said it should also show respect to the prior legal rights of others.

After the ruling went in favor of the defendant, Tencent lodged an appeal with the higher court, which again upheld the board's decision.

The court ruled that there was a marked difference between auto products and telecommunication services. The court said Tencent should have known that Chery enjoyed a certain reputation in the auto field when it filed the trademark application, and thus needed to avoid the prior rights.

Ma Qiang, a partner of Beijing-based law firm Junhe, noted another issue in the case in an interview with China Daily. He said that a trademark like QQ, which is made up of duplicate letters, stands little chance of getting approval, due to the shortage of "inherent distinctiveness" in line with the essence of trademark laws.

"Unless the filers can prove in the later review stage that the simple letters have acquired distinctiveness after long use, they can seldom be given green light as a trademark," Ma said.

So a common practice to get around the rule is to combine the letters with graphics or other words and apply for a trademark with the package, he added.

"When we talk about whether a trademark is similar to or identical with another, we need to consider the trademark package as a whole, rather than part of it," Ma said.

In addition to the distinctiveness of the trademark itself, the relevance in products and services concerned, and the similarities of the trademarks in issue also need to be factored into the judgment, he said. "According to the judicial policies issued by the Supreme People's Court, courts shall identify the border of trademark rights and maintain the already established market order, if the brands cater to different groups."

"Without relevance in essence, the court must have considered they won't have a misleading effect on consumers or users," Ma said.

In response to the higher court's ruling, Tencent said in a statement that as a popular trademark, QQ gained wide acceptance in graphics, pronunciation and branding.

It will continue efforts in protecting its brand image and interest, no matter how tough the path to maintaining its brand may be, the statement said.

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