In the case, in order to buy the infringing products, NewBarlun applied for legalization procedure. However, during that time the application of No.4897840 registration trademark to newbalance was still not approved. Since newbalance did not provide any evidence showing that they could use the said trademark via the authorization of trademark owner, It is appropriate for the trial court gaining the conclusion that newbalance did not have the legal evidence for using the No.4897840 registration trademark when they applied for legalization procedure trying to preserve the involving infringing products.
Newbalance claimed that the trademark they used is No.14206628, while the application of No.14206628 trademark was not approved; therefore, it is not the legal evidence for newbalance to use the related mark. Even if the application of the said trademark is approved later, it could not be used as legal evidence proving that it is lawful for newbalance using the related mark.
The “N” mark in italic and the pentagram mark on the involving products are emphatically using the main part of letter “N” in the No.4236766 registration trademark, meanwhile, the pentagram mark in the said registration trademark is desalinated. The involving trademark is similar with the No.4236766 registration trademark and would mislead the consumers. Therefore, trial court judgment, concluding that newbalance infringed NewBarlun’s registered trademark exclusive rights, gains supports in this situation. The condition of other cases has no bearing on the case; therefore, the related defense shall not be supported.
Furthermore, since both parties did not submit plena probatio to prove the damage or benefit of plaintiff, the trial court judgment is appropriate to weigh the compensation according to the law. The condition of other cases has no bearing on the case; therefore, the related defense shall not be supported.
To conclude, newbalance’s appeal was untenable and should be rejected; the facts were clear and the law was correctly applied in the first instance judgment. Pursuant to Item (I) of Clause 1 of Article 170 of Civil Procedure Law of the People’s Republic ofChina, the decision comes as follows:
Rejecting the appeal and ratifying the original judgment.