When "Keep" clashed with "KEEPONGOING" on apparel, the national fitness brand with 2.8 billion downloads lost the first round of its trademark rights protection battle. Yet it staged a remarkable comeback in the second-instance judgment, where public perception emerged as the crucial evidence for the reversal.
Fitness App vs. Apparel Brand
The plaintiff, Beijing Calorie Information Technology Co., Ltd., is the operator of the online fitness platform Keep. Its core trademark "Keep" is approved for use in Class 41, covering "fitness guidance courses, personal fitness coaching services". After years of development, Keep has racked up over 2.8 billion downloads, with a peak of 36.39 million average monthly active users, and has long maintained a leading position among fitness apps on major app stores.
The three defendants are Guangzhou Shuhong Garment Co., Ltd., Guangzhou Panyu Luopu Shuhong Garment Firm, and Guangzhou Xulin Garment Co., Ltd. These three companies operate stores on Taobao, Douyin, JD and other platforms, and have long sold sportswear emblazoned with the "KEEPONGOING" mark—prominently displayed in store names, product titles, promotional images and physical labels. The infringing mark fully contains the word "Keep", and the "Keep" segment was deliberately highlighted through color contrast and layout design in actual use.
Notably, Guangzhou Shuhong Garment Co., Ltd. had applied three times to register trademarks containing "Keep" for apparel products, all of which were rejected for similarity with Calorie Technology's prior trademarks. Despite this, it continued to commit infringing acts.
First Instance: Popularity ≠ Well-Known Status
Calorie Technology sued the three defendants at the Guangzhou Intellectual Property Court for trademark infringement and unfair competition, requesting that "Keep" be recognized as a well-known trademark for cross-class protection.
The first-instance court held that:
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Calorie Technology's evidence proved the involved trademark enjoyed high popularity, but "a trademark with high popularity is not equivalent to a well-known trademark—higher protection entails stricter recognition criteria".
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Based on the evidence submitted by Calorie Technology, the court ruled that the trademark had not attained well-known status among the relevant public, making it ineligible for cross-class protection. Accordingly, it dismissed all of Calorie Technology's claims.
The ruling surprised many who followed the case: how could a national fitness brand with hundreds of millions of users fail to meet the judicial standard for a "well-known trademark"?
Second Instance Reversal: "Keep" Recognized as a Well-Known Trademark for the First Time
Calorie Technology appealed the first-instance judgment to the Guangdong Higher People's Court.
In the second instance, the court conducted a comprehensive review of all evidence, including Keep's massive download volume and sustained top ranking among apps, stable monthly active users exceeding 20 million from 2019 to 2022, extensive brand reputation built through high-investment multi-channel promotion, and widespread coverage and recognition by authoritative media.
Based on this, the court ruled that the "Keep" trademark had gained an extremely high reputation among the relevant public and constituted a well-known trademark.
The court specifically pointed out that the apparel sold by the defendants and the fitness services for which Keep's trademark was originally approved belonged to different classes. Without recognizing Keep as a well-known trademark, cross-class protection would be impossible—this fully aligns with the principle of ascertainment on demand.
On the finding of infringement, the alleged infringing mark fully contains the core word of the well-known trademark "Keep", and the deliberate highlighting of "Keep" in actual use indicated obvious subjective intent to free-ride on the brand's goodwill.
Sportswear and fitness guidance services are closely related in terms of function and consumer groups. The defendants' acts were sufficient to cause the public to mistakenly believe their products originated from Calorie Technology or had a specific connection with it, improperly exploiting the market reputation of the well-known "Keep" trademark and constituting trademark infringement.
Regarding joint tort liability, evidence showed the three defendants were highly intermingled in equity, personnel, business addresses, shipping information and online operations. They cooperated with a clear division of labor to jointly commit the alleged infringing acts with joint intent to infringe, and thus should bear joint and several liability for compensation in accordance with the law.
The Guangdong Higher People's Court issued the final judgment (2024) Yue Min Final No. 6665, officially recognizing "Keep" as a well-known trademark for the first time and ordering the three infringers to pay 500,000 yuan in compensation.
Key Legal Points Analyzed
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This case is a typical embodiment of the principle of ascertainment on demand for well-known trademark protection: the court will only initiate the procedure for ascertaining a well-known trademark when it is truly necessary to resolve cross-class infringement issues through such recognition.
Calorie Technology had no prior registered trademark for Class 25 apparel products, while the defendants precisely used the infringing mark on apparel. Cross-class protection would be unattainable without recognizing Keep as a well-known trademark, which fully meets the application conditions for "ascertainment on demand".
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In terms of the recognition criteria for well-known trademarks, this case breaks the traditional over-reliance on the market share of physical goods. It innovatively comprehensively evaluates multiple digital-era indicators such as app user scale, activity, the breadth and depth of online promotion, industry status and media credibility, establishing modern standards for the recognition of well-known trademarks for Internet service brands.
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On the ascertainment of "relevance" in cross-class protection, the court clearly stated that although apparel and fitness services belong to different classes, both are closely linked to fitness and sports. The "KEEPONGOING" mark used by the defendants on sportswear fully contains the core word of the well-known "Keep" trademark, and the association was strengthened through color highlighting and unusual layout—this constitutes imitation of a well-known trademark, is likely to cause the relevant public to draw a connection, and improperly exploits the market reputation of the well-known trademark.
In determining the compensation amount, the court fully considered the subjective fault of the infringers for their repeated infringement despite multiple rejections. The defendants had their three trademark applications containing "Keep" rejected, yet they continued to commit the alleged infringing acts despite knowing such acts might constitute infringement. This circumstance became an important factor in the court's final ruling of 500,000 yuan in compensation.
Typical Significance and Implications
The second-instance revision in the Keep case not only vindicates the Keep brand, but also sets a new benchmark for trademark protection in the Internet age. The judgment establishes modern standards for recognizing well-known trademarks of Internet service brands, fully affirming the enormous brand value that high-quality Internet services can accumulate, and providing strong case law support for rights protection of similar brands.
