ZTE plays down Huawei trademark battle

Huawei has scored what ZTE has described as a “temporary relief” in the war between the two.

ZTE issued a statement after Huawei won a preliminary injunction in a German court for alleged trademark infringement. The small victory means that ZTE is currently not allowed to use its logo on USB modem sticks.

According to Bloomberg the company has also been barred from selling devices that have a specific legally protected design.

Although the statement from ZTE plays down the injunction, claiming at one point: “Huawei can obtain the temporary injunction by simply filing an ex parte application to the court”, FOSS patent’s Florian Mueller says it’s more serious than ZTE is letting on.

“ZTE is trying to downplay the weight of the injunction. German courts grant preliminary injunctions only if the petitioner demonstrates a strong case and if the judge concludes that the petitioner is very likely to prevail in a main proceeding,” he said.

The war between the Chinese behemoths has been raging for a while now, while both attempt to try and take huge strides into the Western market.

Huawei took the first swipe when late last month it filed lawsuits against its rival. It accused ZTE of infringing upon patents and trademarks of its data card and LTE technologies, as well as using its trademark on some data card products, without agreement.

It decided to attack from the West filing the suits in Germany, France and Hungary. However, ZTE played dumb at the time, saying it was “astonished”.

The rabbit in the headlights act didn’t last long. Just a mere 24 hours after the first axe was swung, ZTE took aim and filed a suit claiming patent infringements over its fourth generation LTE technology in China.

Like its rival it also asked that Huawei stopped its use of these and gave it a little bit of cash for good measure.

Here is the ZTE statement in full:

1/ The preliminary injunction is just a temporary legal process and is not the final legal result

Regarding news reports yesterday that Huawei has been awarded a preliminary injunction on 2nd May 2011 against ZTE for trademark infringement, ZTE has the following clarifications:

A temporary injunction is not a final legal judgment but only an interim legal process of a lawsuit. Huawei can obtain the temporary injunction by simply filing an ex parte application to the court. This action is only a temporary relief measure, and ultimately the judgment whether an infringement has occurred is still pending a final court decision. Should the court find ZTE ‘not guilty’, Huawei will have to bear all the losses thus incurred. ZTE has not yet received any formal notice of litigation from Huawei.

2/ ZTE refrained from using the relevant trademark a year before Huawei was awarded the trademark registration; therefore, the injunction has no impact on ZTE’s business

ZTE ceased using the relevant trademark for its products on 14th July 2009. Huawei applied for the trademark applications from the European Union (EU) on 4th November 2009 and received approval from the EU on 27th May 2010.

Obviously, Huawei intended to use the trademark right that it acquired on 27th May 2010 to sue ZTE for using the logo before 14th July, 2009 of the act. This is beyond the bounds of normal technology, marketing and legal litigation processes.

ZTE believes that any means outside normal technology, marketing and legal litigation processes should not be used as part of tactical competition. ZTE’s determination to explore the European market will not be impeded by this or any such action. The preliminary injunction will not impact on ZTE’s business.

3/ Huawei had no right to register the RoHS logo as a trademark. ZTE has applied for revocation from the European Union

RoHS is the European Union’s environmental certification, developed by the EU legislation as a mandatory standard, which stands for “Restriction of Hazardous Substances”. It is not an enterprise’s “dedicated” environmental identity, and therefore cannot be used as the logo of a company’s product. This is like having a minor graphic design around the words “energy saving”, and using it as a trademark for household appliances. There is a clear lack of legitimacy.

The trademark application procedure of the EU is different from China, and the EU will not review the actual content in trademark applications. Huawei subsequently added some graphical design elements around these four words and used it to apply for a trademark. ZTE has applied to the EU for revocation of this trademark to protect the interest of ZTE and the wider telecoms industry.