Regarding the recent litigation issue between ZTE and Huawei in Germany around the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS) directive, ZTE would like to clarify the following:
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.
