On March 10, 2020, China Supreme People’s Court (SPC) maintained the first instance decision made by the Fujian High Court, ruling in favor of UNDER ARMOUR, Inc. in a trademark infringement and unfair competition lawsuit against Tingfeilong, a sporting goods company in Fujian Province.

The SPC affirmed that Tingfeilong’s use of the mark “UNCLE MARTIAN & DEVICE” (as shown below) in the brand launching ceremony, in the advertisement soliciting business partners, in the promotional pictures at its business premise, as well as in the brochures and the sample shoes, basketballs and other products, constituted trademark use and infringed the plaintiff's trademark rights; and the use of the company name “安德玛（中国）有限公司” (Under Armour (China) Co., Ltd. in Chinese) constituted unfair competition.

The defendant argued that UNDER ARMOUR furnished no evidence to prove its actual manufacturing and distribution of the accused infringing sportswear, therefore trademark infringement could not be established. The SPC rebutted that: 1) “using trademarks for advertising, exhibition and other commercial activities for the purpose of identifying the sources of goods” (Article 48) falls under trademark use; and 2) using an infringing trademark on the “same kind of goods” or on “similar goods” (Art.57(2)) cover not only the goods that have been actually manufactured and sold but also those to be manufactured and distributed.

The SPC therefore awarded UNDER ARMOUR damages of RMB 2,000,000, considering the high reputation of the plaintiff’s registered trademark, the defendant’s bad faith in deliberately causing confusion and its continuous infringing acts in defiance of the court injunction, esp. the attorney fees RMB 600,000 that the plaintiff incurred to stop and eliminate the adverse effects of the infringement.

Contributed by: Yilin Wang