Editing by David Du
The Beijing Intellectual Property Court recently rejected tech giant Huawei’s request to overturn a China National Intellectual Property Administration (CNIPA) decision, which said no to one of its trademark applications for Hongmeng (鸿蒙)—the Chinese name of its operating system HarmonyOS.
Huawei has been applying to the CNIPA—the Chinese governmental body for trademark registration and review, patent examination, and registration for integrated circuit layout designs—for trademarks containing the keyword Hongmeng since 2019. Till April this year, it has made a total of 219 applications around the Chinese wording. Despite the sheer number of applications, Huawei’s efforts to secure the name seem way too late.
In May 2019, Huawei applied for a “Hongmeng” trademark (No.38307327) under class 42 according to the international classification of goods and services. The CNIPA rejected the application because others have already registered two trademarks using the same Chinese wording under the same classification in 2010 and 2011.
The two trademarks, No. 8923320 and No. 10024420, owned by two Chinese companies, were both registered under class 42, with different subclasses being “technical research” and “computer software design.”
In its decision, the CNIPA said that Huawei’s evidence is inadequate to prove its only association with Hongmeng, which Huawei argued is distinguishable from the other trademarks because of Hongmeng operating system’s popularity in China.
The CNIPA also pointed out that Huawei’s application involves “design and development of multimedia products” and “software design and development,” which constitute similar services over the two existing trademarks and cause a “likelihood of confusion among consumers.”
Not convinced by Huawei’s plea, the Beijing IP court upheld the CNIPA’s decision, mentioning that Huawei failed to provide enough evidence to establish the unique connection to the Hongmeng brand.
According to Article 30 of the Chinese Trademark Law, if a mark is identical or similar to an existing trademark for goods of the same or similar kind, it should not be registered. The court explains that Huawei’s mark would cause confusion because it is similar to the plain text of the two trademarks and overlaps with their services. It constitutes “similarity” under trademark law.
It was reported that the two trademarks used as evidence to deny Huawei’s application had been under court review to decide if they are trademarkable. Later last month, the Beijing High People’s Court made a final judgment to maintain the validity of one of the trademarks, of which the trademark number is 10024420.
The two companies that already hold the Chinese Hongmeng trademarks are much smaller in size than Huawei. It appears at least in this case that the parties are treated equally under Chinese law regardless of their size and influence.
Some analysts say Huawei could appeal to a higher court to revoke the Beijing IP court’s judgment. It could also buy the two trademarks by signing a transfer agreement and filing with the CNIPA. This may take up to 10 months or so to complete.
According to another JW Insights report, the possibility to reverse the first instance judgment is low. But Huawei still holds many trademark applications under class 42 for the keyword Hongmeng.
Huawei planned to develop its operating system as early as 2012. It rolled out its self-developed HarmonyOS in 2019 after the U.S Trump administration banned it from using Google’s Android OS. As the U.S. sanctions continue against the Chinese company, hurting its mobile phone business severely, Huawei looks to develop a much bigger HarmonyOS scheme.
Last week it announced an upgrade plan for an all-scenario, open-source ecosystem—HarmonyOS Connect. Once the upgrade is completed in October this year, different devices, including third-party devices, will be able to communicate and work with one another via this new system. Huawei is also to release HarmonyOS 2.0 in June, which it said will be “a milestone” for the operating system.
So Huawei will use more “Harmony” branding. But trademark wise, it may use only the English name, not “Hongmeng” for now at least.
