CPA Successfully Represents Client Again in Second-Instance Trial of AESCULAP Trademark Case 


China Patent Agent (H.K.) Ltd. (CPA) is glad to report that further to winning the first-instance trial of the "AESCULAP" trademark dispute case, it has again successfully represented its client B. Braun Medical (Shanghai) International Trading Co., Ltd. in the second-instance trial conducted before Beijing No. 2 Intermediate Court in July 2013.
In appealing against the previous court ruling, the two Beijing companies argued that the evidences presented by Braun Shanghai as the defendant in the first-instance trial were insufficient to support the prior use of "蛇牌" (SERPENT BRAND in Chinese); further, they held that as long as Braun Shanghai used the same mark on the same class of goods of "medical instruments" as they did, the issue of consumer confusion became irrelevant.
In addressing the above arguments, CPA attorneys put forward that the capacity of Braun Shanghai as the importer of the Aesculap division of B. Braun Melsungen AG, and thus the legitimacy of "蛇牌", was supported by documents including the registration certificate of imported medical instruments submitted in the first-instance trial, which, equally important, recorded a date earlier than the date of filing for registration of the marks "蛇" by the appellants.
CPA attorneys further pointed out that as distinguished from the use of the marks "蛇" by the appellants, Braun Shanghai did not use the representation "蛇牌" discretely in the manner of a trademark on the designated goods. Finally, given that medical instruments were not daily consumer goods, the relevant public of the products should be those who were able to discern the representations of the marks, rendering the likelihood of consumer confusion relatively slim.
The court after review of the arguments rejected the appeal and upheld the ruling of the first-instance trial. Consequently, the rights of CPA's client Braun Shanghai were successfully defended again.