PINK FLOYD is a well-known rock band from the United Kingdom. To protect the band’s popularity, combating malicious trademark registrations is particularly important.

In the absence of prior trademark rights, we usually rely on the “other prior rights” referred to in Article 32 of the Trademark Law, such as prior rights of use, trade name rights, and copyrights. However, when none of the above rights are possessed, it is necessary to seek other bases.

In the invalidation action against the mark “PINK FLOYD”, upon research, we started with the band’s long-standing popularity and collected evidence of their fame to argue that the merchandising rights brought about by the band’s popularity should be legally protected. Upon review, China National Intellectual Property Administration (CNIPA) held that the merchandising rights, in essence, is based on the band’s recognition and commercial reputation, and has a corresponding connection with the band in derivative industries, as well as the corresponding commercial value and trading advantages. According to the submitted evidence, the band has achieved certain recognition in China, and the acquisition of their fame is the result of the labor of the applicant and the band members, as well as a substantial investment of labor and capital. The corresponding commercial value and business opportunities should be considered as their legal rights and should be protected by the Law. The disputed mark has taken advantage of the band’s popularity and influence, and occupied the market dominant position and trading opportunities enjoyed by the applicant, thus infringing upon the prior rights enjoyed by the band. Therefore, the CNIPA supported our claim and decided that the disputed mark shall be declared as invalid.

From this case, it can be seen that although the merchandising rights is not specifically represented in the Law, it can be recognized and protected in judicial practice.