Audi is a German automobile manufacturer which produces high-performance vehicles for racing events and the average consumer. Though they have a long and storied history, the writer will refer one to their website at http://www.AudiUSA.com. There, one will be able to find some of their basic history; this is not directly relevant for our purposes here.
Audi manufactures a popular line of vehicles named the A-series. They succinctly are named the A3, 4, 5, 6, 7, & 8. The line is extremely popular in China, too. The failure of Audi to receive trademark registration for the A4, specifically will be the focus of our dialogue.
Audi (China), based on its’ sales of the popular A4 model, applied to have the model name registered as a trademark in January 2007. As a matter of course, China’s State Trademark Office has consistently rejected the manufacturer’s petitions to trademark the A-series. In some regards, this is to the detriment of Audi’s brand protection. The writer will analyze the reasonings of China’s administration with that of the legal analysis within the sources.
Similar to trademark requirements in the United States, China’s Law respecting trademarks requires specific distinctiveness. This was the prime reasoning in the statement of rejection. Audi did appeal; however, the decision was affirmed. Contended was the term “A4″ being so simple that, per se, it would not be able to “distinguish the function of the source of goods.” In other words, a determination was made that A4 would not serve the commercial functions of a trademark. This assertion can lead to steep debate.
With high-end vehicles, the name of the manufacturer and the model are used for brand recognition. In contradiction to the strict application of the distinctiveness phrase, I would argue that the model can be viewed as distinctive “enough”. Consider this from an applied point of view: if our class comingled funds and manufactured a new vehicle, the IP A4, is it seriously argued that our brand would put the proverbial dent in Audi’s market share? High-end companies have long kept model names simple, thus allowing their performance to do the talking. This should not be held against them. Personally, when I see a BMW 640 ci cruising down I – 95, I say, “There is a 6-series on the road.”, not “You know, BMW really needs to work on their marketing!” In this respect, I do not view myself as novel with this expression.
Attorney You Yunting, providing article analysis, agrees with the court’s decision. The court rejected application for trademark on the basis that the model term was not distinctive enough. It was a common models for cars. However, as explained before, the writer knows of no one who confuses this term with a Chrysler or Hyundai. While this may be somewhat anecdotal, I have checked with several Chinese citizens. They know of no other vehicle models termed the A4. Assuming these individuals have a common knowledge of cars, there would exist no way for the common citizen to confuse Audi’s model with a competitors. Therefore, I assert that the reasoning was not based on credible fact or reliable data. This significantly impacts Audi’s ability to protect their brand and the development thereof.
Yunting argues that granting trademark status would work against the interests of fair competition. However, as argued above – assuming the same model name, two vehicles distinctive in quality, or not, would not promote competition. Vehicles with like quality would confuse consumers, whereas in the alternative, the manufacturers would undoubtedly move to defend brand; this at the expense of quality and the consumer.
In another analysis, referencing the TT sportscar line, Yunting concedes that similar trademarks would create legal confusion. However, the sportscar line may be able to obtain registration due to other considerations dealing with similarity. I have always offered that this field of law is a hypersubjective area of law. To further add to the contradiction, China does have a registered trademark that is somewhat similar to TT. It appears that the court employs less conservative reasoning with this matter.
As Audi progresses through its’ issues with trademark law in Asia, China will need to ensure that they are offering consistent appolication of the law. Otherwise, their dockets will be crammed with requests to re-examination and appeals to courts of competent jurisdiction.
http://www.chinaiplawyer.com/trademark-office-reject-audis-a4-trademark-application/ 2015, April 15, 2013, October 30
http://www.chinaiplawyer.com/chinas-courts-decide-audis-tt-apply-trademark/ 2015, April 15, 2013, 2013,