Professor Mike McCann discusses how Michael Jordan won a trademark case in China’s Supreme People’s Court after a long legal battle with Chinese company Qiaodan Sports. Produced and Hosted by A. J. Kierstead
Read Professor McCann’s Sports Illustrated article on the subject: https://www.si.com/nba/2020/04/14/michael-jordan-copyright-lawsuit-case-china
Follow Professor McCann on Twitter: https://twitter.com/mccannsportslaw
UNH Franklin Pierce School of Law is now accepting applications for JD, Graduate Programs, and Online Professional Certificates at https://law.unh.edu
Legal topics include intellectual property, trademark, name and likeness, sports law, entertainment law
Read the Transcript
A. J. Kierstead (Host):
Professor Mike McCann discusses how Michael Jordan won a trademark case in China Supreme People's Court. This is the legal impact presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD graduate programs and online professional certificates, of learn more and apply at law to at UNH the EDU.
A. J. Kierstead (Host):
Opinions discussed it's still of the opinion of the faculty your hosts and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire. Mike, what was this case about?
Michael McCann:
Sure AJ. The case was about Michael Jordan's eight year quest to stop a company in China from misappropriating his name, image and likeness. The company has used his identity or something extremely close to his identity to go from what might be a random sportswear company in China to one that opened over 6,000 stores and made a lot of money because of its use of a word that is his name in Chinese, it's a transliteration.
Michael McCann:
It's not a translation. It is how his name would sound using the Chinese language and the company really didn't try to shy away from what they were doing. They registered trademarks and about 200 properties that are connected to Jordan, including even the names of his sons. Basically it's Jordan saying, "Stop this."
A. J. Kierstead (Host):
And this has had a decade long journey. Can you give the highlights?
Michael McCann:
Yeah, under Chinese trademark law, it is a first to file, whereas in the United States it's first to use. And the distinction is important because it has allowed a company in China in the late 90s to file trademarks that initially weren't about Jordan because the first logo was a baseball player, I don't think it was about Jordan playing baseball for a year. That's not really a career highlight for him.
Michael McCann:
But what it did was it took advantage of Jordan's popularity in China and across the globe. Back in the mid 1980s Jordan became a star in basketball. He went from college to the NBA, the Chicago Bulls, and he quickly became the NBA's best player and within several years he not only was the MBA's best player, but he became thought of as the NBA's best player ever. And he also did movies and commercials and just became the celebrity person that was extremely marketable.
Michael McCann:
He became the face of the NBA in a way that no player, even Larry Bird and Magic Johnson as much as they did, they never reached Michael Jordan status. And the company in China basically said, "We're going to use that identity, we're going to use..." The word used to describe him in Chinese coupled with a logo that looked a lot like the famed Nike Jumpman logo wasn't identical, but it was really close and other things as well.
Michael McCann:
And again, under Chinese trademark law, they filed first. So under Chinese trademark law, they obtained these rights at Jordan later on said misappropriated. Fast forward to the late 2000s, Nike's trying to register trademarks in China because basketball had become much more popular in China. Beijing hosted the 2008 Olympics. Yao Ming became a star in the NBA. The China's economy grew considerably at that time, so there's more of a consumer class.
Michael McCann:
Nike's trying to sell products there, but they ran into a problem because this other company had already gotten those properties connected to Michael Jordan. So Michael Jordan brought a suit, over 80 lawsuits have been involved from this litigation that began in the early 2010s and now just concluded.
A. J. Kierstead (Host):
Now, how exactly did the Supreme People's Court in China rule on this case and how might've it been different than what was ruled in the past?
Michael McCann:
They ruled in a way that was different by saying, yes, Michael Jordan's name has been misappropriated. That the company in China used his name. Again, not a translation, but a transliteration of his name and now there were some hurdles to this for Jordan because the transliteration is the word Jordan, there are other NBA players that have had Jordan. Now of course Michael Jordan is in a class of his own. The fact that a few other guys played in the NBA with that last name was seemingly a weak argument.
Michael McCann:
But the fact that it wasn't actually his name became important. LeBron James as used, the fact that his own name in contracts in Chinese has been used that distinguished him from Jordan where this word wasn't actually Jordan's name. The court nonetheless felt that it's enough of a copy of Michael Jordan's name. But it wasn't a total victory because his image and likeness wasn't considered a part of his protected identity.
Michael McCann:
That means the logo can still be used and the company doesn't have to pay anything to Jordan. It's a win for his name, but not the other aspects of him.
A. J. Kierstead (Host):
Do you think this ruling was also an international political move on behalf of the Chinese government in order to encourage further economic partnerships? The NBA has been trying to get a foothold into China as well as all the other professional sports leagues for that matter. Because it's a huge untapped market that's quickly trying to become a first world nation.
Michael McCann:
That's right. I think there's reason to expect, and without knowing as a fact, I think there's reason to suspect that there's a connection there. And United States and China have a new trade deal which likely plays into it. Where the United States government is looking for more intellectual property protection for American businesses that do work in China, to ensure that those businesses intellectual property isn't misappropriated and infringed upon.
Michael McCann:
There's possibly, I think many experts would say there's a connection between these things where after years of Jordan not getting the wind that he has demanded, now getting it right when the US strikes a trade deal with China. Yeah. And is there a connection there? Maybe can't be proven, but life isn't always coincidental.
A. J. Kierstead (Host):
Do you predict more cases to be brought in light of the success of Jordan? This was a huge factor when it comes to economic relations like you just said, especially in the runs of tech and design. This goes more on the design copyright realm. But this has been a longterm issue with this country.
Michael McCann:
Yeah. It has been a longterm issue and it wouldn't surprise me if Jordan's win gives hope to American entertainers, athletes and businesses and all sorts of spaces including the tech space that you reference to protect names. Again, it doesn't go to image and likeness. The names themselves can have a lot of value as we know, especially in the tech industry, so it could give them hope and could give them precedent that helps them out.
A. J. Kierstead (Host):
Have any of the leagues or players spoken out about this at all?
Michael McCann:
They haven't. Not yet. And I think for the NBA, they're in a delicate situation with China because of the fallout of last summer, last fall where a tweet by an NBA general manager about Hong Kong, a fairly mild tweet, it was by Daryl Morey nonetheless became a political controversy that the NBA has tried to mollify, but it hasn't been entirely successful it seems.
Michael McCann:
Now all of this is in suspended motion because of COVID-19 pandemic where nothing's really happening right now in terms of games, but as the pandemic weakens and hopefully is defeated, NBA will certainly want to try to get back in China because it is a marketplace that would be beneficial. Obviously, the political stuff is tricky because in the United States we have a first amendment not true in China.
A. J. Kierstead (Host):
Thanks for listening to the legal impact presented by the University of New Hampshire Franklin Pierce School of Law. Till spread word about the show. Please be sure to subscribe and comment on your favorite podcast platform, including Apple podcast, Google play, and Spotify. See you next Thursday
