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Legal comments on China Supreme court's ruling in favor of Michael Jordan on his name v. trademark case

China Supreme court Michael Jordan case

Copyright is the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical works, and to authorize others to do the same. A name is not a literary, artistic or musical work and therefore cannot be granted copyright protection.

A name can be trademarked, however. A trademark is a symbol, word, or words legally registered or established by use as representing a company or product. If the word or words comprising a name is used as a trademark for a company or product, you cannot use that name for a competing or related company or product in such a way that it would likely cause confusion for the typical customer.

For example, if someone uses the name “John Smith” as a trademark for suitcases, you would be committing trademark infringement if you were to sell your own brand of suitcases under the name “John Smith.” If someone has trademarked her name “Mary Jones” for her restaurant business, you would be committing trademark infringement if you opened up your own restaurant named “Mary Jones”. You could, however, open a car wash named “Mary Jones” if no one else had previously trademarked the name for that type of business.

You can search for names that have been registered as trademarks in the United States, along with the specific business and product categories the trademark covers, here: TESS.

The copyright law rules regarding whether a person's name is protected differ among the jurisdictions. In China, for example, to some extent a famous person's name may be protected. China Supreme court just ruled a case in favor of Michael Jordan, after he has litigated in China for years to fight against a Chinese company using the Chinese version of his name as sports brand name. The news coverage can be found here: http://www.chinalawlist.com/china-legal-news/112-michael-jordan-finally-wins-the-right-to-use-the-chinese-version-of-his-name

Another intellectual property attorney have different view, he says:

Let's say your name is Taylor Swift. The other Talyor Swift does not have a copyright on that. If she did, you wouldn't be able to write it out on any forms without her permission, because that would be making a copy. You are fortunate there. If you want to use your name in selling products, there is a trademark issue to consider. There are famous examples of conflicts that arise in those situations even though it is your name. But those can usually be worked out with trademark advice ahead of time. But if you are not making use of your name in commerce or to designate source of goods or services, then you get to use your name.

Philip Albert, Intellectual property attorney

It's an interesting case, when you see that Chinese court may grant protection over a person's name, while other jurisdiction, such as the U.S., may not do the same. How would the U.S. court rule under the same situation? Any colleagues can shed some light?

 

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