海口中院发布诉中禁令要求涉嫌商标侵权的在售楼盘立即更名
A real estate project in Haikou City used KERZNER International Ltd.’s registered trademarks "YA TE LAN DI SI (Atlantis in Chinese)" and "Atlantis", meanwhile its operator also used "Atlantis" in its company name. Recently, Haikou Intermediate People's Court ruled that the defendants, i.e. the real estate project operator, committed trademark infringement and unfair competition, and ordered that the defendants immediately cease the infringing conduct and pay 1 million RMB compensation to KERZNER.
It is worth mentioning that during the hearing of the case, Haikou Intermediate People's Court issued an interim injunction, requesting the operator of the accused real estate project immediately to cease the use of its company name including Chinese characters “亚特兰蒂斯”. This is the very first injunction in a foreign-related trademark infringement case in the field of real estate.
The real estate project in Haikou was called "Atlantis Garden" with prominent use of "Atlantis", which was identical to the registered trademark used by Kerzner on its iconic luxury entertainment destination resort and hotel Atlantis in Sanya, another city in Hainan province. The defendants’ real estate project consists of serviced apartments and uses the tagline "super five-star hotel service," which has been emphasized many times in its promotional materials. Just before "Atlantis Garden" officially went on sale in May 2018, the next generation of KERZNER’s Atlantis resort opened in Sanya, in April 2018.
The plaintiff believed that the defendants’ real estate project was being rolled out in several phases, and because the two parties were both in Hainan Province and there was a high degree of overlap between the vacation property and the resort hotel in terms of consumer groups and market channels, if the defendants’ use of the trademarks at issue was not ceased immediately, the defendants’ use of "Atlantis Garden" would cause confusion to consumers and bring an unrecoverable loss to the reputation of KERZNER.
Haikou Intermediate People's Court did an overall evaluation of the necessity and the social effect of the interim injunction, and finally issued the injunction in September 2018. This injunction effectively set a clear regulation preventing intellectual property infringement in the real estate field, especially focusing on the arbitrary naming the real estate projects.
In this case, in addition to issuing the interim injunction, the court held that the defendants’ use of the trademarks at issue on its serviced apartment project constituted trademark infringement against KERZNER’s service trademarks in class 36 "Real estate management and sales" and class 43 "Hotel service", and fully supported the plaintiff's claim of 1 million RMB.