Guiding Case No. 113

Original Judgment(s) leading up to this Guiding Case

Full Text of the Guiding Case

Keyword(s)

Main Points of the Adjudication

  1. The right to name is a personal right that a natural person has over his [1] name, and the right to name can constitute a prior right provided for in the Trademark Law. Where the Chinese translation of a foreign natural person’s foreign name meets [certain] conditions, [the foreign natural person] may legally claim that it be given protection as a specific name in accordance with relevant provisions regarding the right to name.
  2. Where a foreign natural person claims the protection of the right to name with respect to a specific name, the specific name should meet the following three conditions: (1) the specific name is, to a certain degree, well-known in China [2] and is known to the relevant public; (2) the relevant public uses the specific name to refer to the natural person; and (3) a stable correspondence relationship has already been established between the specific name and the natural person.
  3. [...]
  4. [...]

  1. Article 32 of the Trademark Law of the People’s Republic of China (Amended in 2013) (Article 31 of the Trademark Law of the People’s Republic of China as amended in 2001 was applied to this case) [3]
  2. Article 4 and Article 99 Paragraph 1 of the General Principles of the Civil Law of the People’s Republic of China [4]
  3. Article 7 and Article 110 of the General Provisions of the Civil Law of the People’s Republic of China [5]
  4. Article 2 Paragraph 2 of the Tort Liability Law of the People’s Republic of China [6]

Basic Facts of the Case

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Results of the Adjudication

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Reasons for the Adjudication

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CGCP Notes

Note 1:
Trademark Law of the People’s Republic of China (Amended in 2013)

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Note 2:
General Principles of the Civil Law of the People’s Republic of China

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Note 3:
General Provisions of the Civil Law of the People’s Republic of China

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Note 4:
Tort Liability Law of the People’s Republic of China

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Note 5:
Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in Adjudicating Unfair Competition Civil Cases

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Note 6:
Anti-Unfair Competition Law of the People's Republic of China (2003 version)

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Endnotes

* The citation of this translation of this Guiding Case is: 《迈克尔•杰弗里•乔丹与国家工商行政管理总局商标评审委员会、乔丹体育股份有限公司“乔丹”商标争议行政纠纷案》(Michael Jeffrey Jordan v. The Trademark Review and Adjudication Board of the State Administration for Industry and Commerce and Qiaodan Sports Co., Ltd., An Administrative Case Concerning a Dispute over the “乔丹” Trademark), 8 China Law Connect 77 (Mar. 2020), also available at Stanford Law School China Guiding Cases Project, English Guiding Case (EGC113), Mar. 2020, http://cgc.law.stanford.edu/guiding-cases/guiding-case-113.

The original, Chinese version of this case is available at 《最高人民法院网》 (www.china.gov.cn), http://www.court.gov.cn/fabu-xiangqing-216751.html.  See also 《最高人民法院关于发布第22批指导性案例的通知》 (Notice of the Supreme People’s Court on the Release of the 22nd Batch of Guiding Cases), issued on and effective as of Dec. 24, 2019, http://rmfyb.chinacourt.org/paper/images/2020-01/15/03/2020011503_pdf.pdf.

This document was prepared by Xinyue Zhu, CHEN Yi, Sean Webb, Dimitri Phillips, and Dr. Mei Gechlik.  Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers.  All footnotes and “CGCP Notes”, unless otherwise noted, have been added by the China Guiding Cases Project.  The following text is otherwise a direct translation of the original text released by the Supreme People’s Court.

[1] The terms “he”, “him”, and “his” as used herein are, unless the context indicates otherwise, gender-neutral terms that may refer to “she”, “her”, “it”, and “its”.

[2] The original text reads “我国” (“my/our country”) and is translated herein as “China”.

[3] The final judgment upon which this Guiding Case is based (i.e., Retrial Judgment, infra note 24) explicitly cites Article 31 of the Trademark Law as amended in 2001 (likely because the retrial applicant of this case first requested that the Trademark Review and Adjudication Board, the retrial respondent, revoke the registration of the “乔丹” trademark on October 31, 2012, when the 2001 version of the Trademark Law was still in effect).  The 2013 amendment re-numbered the provision as Article 32, which remains the same in the currently effective version of the law.  See《中华人民共和国商标法》 (Trademark Law of the People’s Republic of China), passed and issued on Aug. 23, 1982, effective as of Mar. 1, 1983, amended four times, most recently on Apr. 23, 2019, effective as of Nov. 1, 2019, http://www.sipo.gov.cn/zcfg/zcfgflfg/flfgsb/fl_sb/1140931.htm.

[4] 《中华人民共和国民法通则》 (General Principles of the Civil Law of the People’s Republic of China), passed and issued on Apr. 12, 1986, effective as of Jan. 1, 1987, amended on and effective as of Aug. 27, 2009, http://www.npc.gov.cn/zgrdw/npc/lfzt/rlys/2014-10/28/content_1883354.htm.

[5] 《中华人民共和国民法总则》 (General Provisions of the Civil Law of the People’s Republic of China), passed and issued on Mar. 15, 2017, effective as of Oct. 1, 2017, http://www.npc.gov.cn/zgrdw/npc/xinwen/2017-03/15/content_2018907.htm.  This law came into effect after the final judgment upon which this Guiding Case is based (i.e., Retrial Judgment, infra note 24) was rendered.  Thus, the law is not mentioned at all in the Retrial Judgment or the reasoning section of this Guiding Case.

[6] 《中华人民共和国侵权责任法》 (Tort Liability Law of the People’s Republic of China), passed and issued on Dec. 26, 2009, effective as of July 1, 2010, http://www.gov.cn/flfg/2009-12/26/content_1497435.htm.