American Law versus Chinese Law has been an ongoing saga in the realm of trademark law in the sport industry. Michael Jordan, arguably the greatest basketball player of all time, is the latest victim of the differences that exist between the two countries’ laws. Back in 2012, Jordan sued Qiaodan Sports Inc., a Chinese sportswear firm, for infringing upon his right of name and right of portrait.[1] Qiaodon is the Chinese transliteration for the English name “Jordan” and the logo of the store is a silhouette of a basketball player stretched out holding a basketball, which is very similar to the famous logo of the brand Air Jordan.[2] This past summer the Bejing Municipal High People’s Court ruled in favor of Qiaodan.[3] The Court found that Jordan’s claims were insufficient because Qiaodan had filed the trademark in China first, Qiaodan was not closely connected to Michael Jordan and the silhouette had no indication of any specific facial appearance.[4] As a result, Michael Jordan now plans to appeal to the China Supreme Court.[5]
Chinese Trademark Law can be very different to American norms. Many countries like China grant trademarks to whoever files it first instead of whoever uses it first.[6] Unfortunately, when Nike launched a campaign in China back in the 1990’s, it only registered the English version of “Jordan”.[7] Meanwhile, a few years later, Qiaodan filed its trademark, launched its new business, and then expanded to around 6,000 locations, making hundreds of millions of dollars in the process.[8] Besides, the actual black letter law of filing trademarks in China, there are cultural and social factors that most likely contributed to the decision against Jordan. Most Chinese people believe that copying is not wrong and that it is almost a compliment to have your work copied.[9] There is also an unwillingness to use litigation by the Chinese people and a level of corruption exists in the court system.[10] Due to all of the above friction towards copyright law, Chinese law has caused problems for sport and other entertainment individuals.
Over the years, big name American companies have been involved in overseas litigation involving trademark law. The likes of Apple, Gucci, New Balance, and Tesla have had to negotiate with Chinese companies to come to agreements concerning their trademarks.[11] One success story for an American athlete was another NBA star Allen Iverson. Iverson sued a Chinese citizen named Lin Zedong who tried to register the Chinese translation of the name “Iverson”.[12] Unlike the current Jordan case, this Court ruled that the defendant should have been aware that Iverson is the name of an NBA star and held that the defendant was taking advantage of the star’s reputation.[13] The major difference in the Iverson case was that Reebok took action immediately against the defendant before the defendant was really able to start using the name and image, while Michael Jordan’s camp waited years before taking action.[14] It seems that the Chinese court does follow its custom of granting rights to whoever registers trademarks first, but does still weighs in the usage of the trademark the American way.
It will be an uphill battle for Michael Jordan and company as they try and fight Qiaodan in China’s highest court. History tells us that it is a losing cause, but losing is not in this American basketball star’s DNA. He is coming off a huge win in an American court last month against the supermarket chain Dominick’s.[15] Here, the Court held that the supermarket infringed on Jordan’s likeness without his permission.[16] Chinese law doesn’t have the reputation for being so generous, but only time will tell.