In life is full of a wide variety of goods, each commodity has its own "business card" - trademark. As a kind of commercial logo, the main function of trademark is to identify and distinguish the source of goods, which is to enable consumers to know who the producer of goods is through the trademark. Some trademarks have unique characteristics, through the integrity of the business management, not only represent the quality standards of their products, but also carry a wide range of goodwill and social recognition. However, there are also some trademarks, due to the design is not standardized enough or deliberately play "edge ball", easy to make the relevant consumers on the quality of their goods, function, raw materials and other characteristics or origin of misidentification.
Recently, the Beijing Intellectual Property Court concluded an administrative litigation case concerning the rejection of a trademark application. Find out what's going on with Deep Trust.
A brief account of the case
In THE process of applying for the registration of the trademark "THE QIXIA APPLE BRANDY", the defendant State Intellectual Property Office believed that the trademark was in violation Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law) the provisions of Article 10, paragraph 1 (7), are deceptive and easy to cause the public to misidentify the quality and other characteristics of the goods or the origin of the trademark application is rejected. The plaintiff argued that its trademark was not deceptive and filed a lawsuit to vacate the decision against it, requiring the defendant to make a new decision.
Trademark No. 52242572 "THE QIXIA APPLE BRANDY"
The original told that the contested trademark is the plaintiff's original, itself is not deceptive, and a large number of similar goods containing "APPLE" and "apple" words of the trademark has been approved for registration, according to the principle of consistency of examination standards, the contested trademark should also be approved for registration. The use of the contested trademark has formed a one-to-one correspondence with the plaintiff, which will not cause the relevant public to misrecognize. To sum up, the court is requested to revoke the decision in accordance with the law and order the defendant to make a new decision.
After hearing, THE Beijing Intellectual Property Court held that the trademark "THE QIXIA APPLE BRANDY" in this case can usually be translated as "Qixia Apple brandy", and the use of brandy products is easy to cause the relevant public to misidentify the ingredients and other characteristics of the products. Therefore, the contested trademark has been constituted with deception, which is easy to make the public misrecognize the quality and other characteristics of the goods or the origin of the goods. At the same time, the trademark examination is case-by-case, and the approval of registration of other trademarks is not the natural basis for the approval of registration of the contested trademark in this case.
Therefore, the Beijing Intellectual Property Court rejected the plaintiff's claim. The plaintiff was dissatisfied and appealed to the court of second instance, which upheld the decision of the first instance.
The judge interprets the law
Trademark ActArticle 10, Paragraph 1, Paragraph 7, deceptive, easy to cause the public to misidentify the quality and other characteristics of the goods or origin, may not be used as a trademark.
This clause may be referred to as a "deceptive" clause, which shall be determined by the following considerations:
1. The basis of judgment is objective.The basis for judging that the mark is deceptive is that the registration mark objectively expresses or describes the quality of goods or services and other characteristics or origin information, and this description may cause the relevant public to have a wrong understanding. It is usually not considered whether the trademark applicant has subjective intent to deceive.
2. To be used in conjunction with the specified goods or services.Only when combined with goods or services can the mark play a role in identifying the source. To determine whether the mark is deceptive, it should be based on the understanding of the meaning of the trademark mark and the specific analysis and judgment of the characteristics of the goods or services designated for use.
3. Only the possibility of misidentification is required.When judging whether a mark is deceptive, it is not required that the mark actually produce deceptive results. As long as the registration mark itself has the possibility of causing the public to misrecognize, it is in line with the "deceptive" clause regulation.
4. Judge by the public's daily life experience.The criteria for judging whether a trademark mark is "deceptive" should be consistent with the general cognitive level and cognitive ability of the public.
5.The logo cannot be registered even if it is used。The "deceptive" clause is an absolute prohibition of trademarks, and the marks constituting the circumstances set forth in this clause shall not be used as trademarks, nor shall they be registrable through use.
In this case, THE contested trademark is a word trademark composed of pinyin and English "THE QIXIA APPLE BRANDY", which can be translated into Chinese "Qixia Apple Brandy". According to the overall meaning of the contested trademark logo, it is designated to be used on "brandy" products. It is easy to believe that the ingredients of the commodity contain "apple" or "Qixia apple", while the documented evidence is not enough to prove that the specified goods such as brandy produced by the plaintiff contain "apple" or "Qixia apple". The mark makes an inconsistent statement about the raw materials, quality and other characteristics of the specified goods, which is easy to cause the relevant public to have a wrong understanding of the quality and other characteristics of the commodities. Mistaken for brandy products containing "Qixia apple" or "apple" ingredients.
In addition, due to Trademark Act Article 10, Paragraph 1, Paragraph 7, is a trademark prohibition clause, and the mark constituting the situation referred to in this provision shall not be used as a trademark, and the actual use of the mark by the applicant registrant shall not be used as the basis for determining that the mark is registrable.
The judge shows
Trademarks are intangible assets of enterprises. In order to improve product recognition, recognition, trademark applicants in the design of trademarks, often through some express or implied expressions, convey the business philosophy of the enterprise, highlight the quality of their products, origin and other characteristics. This itself is nothing wrong, but the trademark application can not be arbitrary, if the applicant's description of the characteristics of the product is intentionally divorced from the reality of the goods sold, or the use of some constituent elements are easy to make the relevant public misidentify the characteristics of the goods, it may violate the public interest, including the majority of consumers. Will not be allowed to register because of the "red line" of "deceptive" terms.
Enterprises or individuals should be more careful when applying for trademarks, take the initiative to avoid some words that may cause misidentification and misunderstanding, and avoid touching the minefield of "deceptive" provisions and not be approved for registration. At the same time, the majority of consumers should always sharpen their eyes and not be deceived by those non-standard trademarks.
Source: Beijing Law Net
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