Redberry, BlackBerry's New Nightmare?

Research in Motion (RIM) settled it's patent dispute with NTP by agreeing to pay US$ 612.5 million, read more here. So RIM needs to earn some money and it was just about to embark on the Chinese market, only to find out that China Unicom has started to offer a push email service called Redberry.

Arik Hessendahl with Bruce Einhorn wrote an article about it for BusinessWeek. Hessendahl:
"China Unicom's service is not only patterned after the BlackBerry, but its name is inspired by the BlackBerry as well."
Hessendahl noticed that China Unicom wrote the following statement:
"China Unicom's Redberry brand not only continues the already familiar 'BlackBerry' image and name, it also fully reflects the symbolic meaning of China Unicom's new red corporate logo."
The original statement here in Chinese.

RIM gives no comment if it will sue China Unicom for trademark infringement. In the article Jim Fang of Davis Wright Tremaine is quoted:
"The key to asserting a trademark in China is whetheror not the trademark you're asserting is famous. If your trademark is famous you're on stronger ground, even if your trademark isn't registerd."

Read more about the foreign famous mark/well-known trademark here and below:

Since China's accession to the WTO it has to compy to the TRIPs Agreement to. Article 16 (3) TRIPs in conjunction with article 6bis (1) of the Paris Convention, well known trademarks enjoy considerably broader protection than those without such a reputation.

"If a well-known trademark similar to or identical to the well-known trademark cannot be registerd for the same or similar goods, and an existing registration will be cancelled or its use prohibited for the same or similar goods. If the well-known trademark is registerd, the protection is even broader: a similar or identical trademark is not even to be registered for goods that are not identical or simialr, an existing registration is to be cancelled and its use forbidden for such goods if the public concerned could confuse other products with the trademark products provided that the interests fo the owner of the trademark are likely to be damaged by such use."

Source: Katrin Blasek, University of Freiburg Institute for Business law, Germany, published in the International Review of Intellectual Property and Competition Law, nr. 3, 2005, pp. 279-388, "The Protection of Well-Known Trademarks Following China's Accession to the WTO"

Update: Excellent intro to well-known trademarks here.

Read Hessendahl's article here.

Marty Swimmer of Trademark Blog questioned 'What should BlackBerry do about Redberry in China? He asked Spring Chang at Chang Tsi what RIM should do?' Spring Chang's answer you can find here.