Two "Wukongs" in Conflict: APP Names Constituting Trademark Infringement Is Not Acceptable!
2025-01-25   |   发布于:赛立信
Recently, the Fujian Provincial Higher People's Court concluded a second-instance case involving alleged trademark infringement and unfair competition related to an "APP" name, which has attracted considerable attention.
The plaintiff in the case is Xiamen Maji Brothers Network Technology Co., Ltd., which holds trademarks such as "Wukong Fen Shen" and "Wukong Duo Kai." These trademarks are registered for use in Class 9, covering recorded computer programs, recorded computer operating programs, computer software (recordable), and downloadable computer application software.
The defendant is Xiamen Quantum Stack Technology Co., Ltd. The APP developed and operated by this company was launched on the platform under the names "Wukong Fen Shen" and "Wukong Duo Kai." The earliest release date was October 30, 2017, and the software has accumulated approximately 140 million downloads.
As the software's download volume increased, Maji Company also took notice and sent emails to several mobile application platforms, alleging that the software APP constituted trademark infringement and requesting the platforms to remove the software.
In its counter-notice, Quantum Company argued that its products predated Maji Company and accused Maji of maliciously registering the trademarks. It also initiated procedures such as trademark objections and invalidation declarations against the "Wukong Fen Shen" and "Wukong Duo Kai" trademarks.
In 2022, Maji Company sued Quantum Company in the Xiamen Intermediate People's Court of Fujian Province, citing trademark infringement and unfair competition, and requested the court to order the defendant to cease the infringing acts and compensate for 2.25 million yuan.
During the trial, the plaintiff company stated that the defendant was suspected of engaging in false or misleading commercial promotional activities. Due to the rule that APP names on mobile application platforms cannot be identical, the plaintiff's own "Wukong Fen Shen" APP could not be launched in a timely manner. However, the defendant company was able to benefit from the promotional efforts of the plaintiff's software, causing significant losses to the plaintiff.
The defendant company, on the other hand, argued that the "Wukong Fen Shen" APP had already achieved over 7 million downloads and a good reputation before the application date of the involved trademark. It claimed that it had established a certain level of influence through prior use, and since the plaintiff had not actually used the involved trademark, the defendant did not infringe the plaintiff's trademark rights or engage in unfair competition.
After the trial, the court held that:
  1. The defendant company's use of "Wukong Fen Shen" and "Wukong Duo Kai" as APP names, uploading them to multiple mobile application platforms for download and use by the relevant public, and promoting them, constituted an act of identifying the source of goods or services. The goods or services provided by the accused software were identical to the categories of use of the involved trademarks. This behavior was likely to mislead the public into believing that the APP provided by the defendant company originated from the plaintiff company or had a specific connection with it, thus constituting an infringement of the exclusive right to use the registered trademarks.
  2. Regarding the defendant company's claim of prior use rights, the investigation revealed that the download volume of the "Wukong Fen Shen" APP before the application date of the involved trademark was relatively limited and insufficient to prove that it had reached a certain level of influence. Therefore, the court did not support this claim.
The court ultimately ruled that the defendant company must immediately cease the infringing acts and determined that it should compensate the plaintiff company for economic losses and reasonable expenses amounting to 200,000 yuan.
After the first-instance judgment, both Maji Company and Quantum Company appealed to the Fujian Higher People's Court. The second-instance judgment of the Fujian Higher People's Court dismissed the appeals of Maji Company and Quantum Company and upheld the first-instance judgment.
Summary:
Article 76 of the Implementing Regulations of the Trademark Law stipulates that using a mark identical or similar to another person's registered trademark as a product name or decoration on the same or similar goods, which misleads the public, is considered an act of infringing the exclusive right to use a registered trademark as specified in Article 57, Paragraph 2 of the Trademark Law.
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