Cui Shudong, Director of the Trademark Office of the State Intellectual Property Office, pointed out at the release and interpretation of the "2021 Typical Cases of Trademark Opposition and Review" that the trademark opposition and review procedure is an important part of the trademark authorization and confirmation, which plays an important role in strengthening the source protection of intellectual property rights and optimizing the business environment. In recent years, the State Intellectual Property Office has made every effort to improve the quality of examination and hearing, constantly reducing the time limit for examination and hearing, and giving full play to the positive role of trademark opposition and review procedures in combating malicious registration, protecting prior rights, consumer interests and public interests.
In order to strengthen the strength of the case argument and enhance the awareness of the whole society to respect and protect intellectual property rights, we set up the "Trademark Case Intensive Reading" column to exclusively publish the professional interpretation of 24 trademark opposition and review cases selected by the Trademark Office of the State Intellectual Property Office, which have a strong reference role in the application of law in future cases. Introduce the practice of application of legal provisions in trademark opposition and review procedures to help relevant parties effectively protect their legitimate rights and interests according to law.
Focus: The application for trademark registration shall not prejudice the prior name rights of others
Article 32 of the Trademark Law stipulates that the application for trademark registration shall not prejudice the existing prior rights of others, nor shall it be allowed to preempt the registration of a trademark that has been used by others and has certain influence by unfair means
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1. Basic Facts
Opponent: Shanghai soybean Network Technology Co., LTD
Person challenged: Jieyang Huamei Plastic industrial Co., LTD
Objected trademark: Fan Dengshutong
Designated goods： Category 25 "Shoes (things worn on the feet); Socks; Clothing; Hat; A tie; Gloves (clothing); Bathing suit; Children's clothing; Belt (for clothing); A wedding veil."
The main reason for the dissent：The opposed trademark is similar to the trademark of "Fandeng Mall", "Fandeng Reading" and "Fandeng Little Reader" that the opponent has registered and used in advance, which infringes Fandeng's right to name.
The main evidence submitted by the objector：Programs, works, personal honors, advertising and offline activities of Fandeng Books, copy of Fandeng ID card, introduction of Fandeng Books and Fandeng books from Baidu Encyclopedia, reports on Fandeng books from TV stations, media, magazines, newspapers and other media, etc.
The person opposed fails to make a defense within the prescribed time limit.
Based on the reasons and facts stated by the parties, upon examination, the Trademark Office considers that:
Fan Deng is the founder and shareholder of the dissident brand. His name "Fan Deng" and the brand "Fan Deng Reading" created by him have gained certain popularity among the relevant public after long-term use and extensive publicity.The opposed trademark "Fandeng Bookboy" contains the name of the opposing shareholder "Fandeng", and the meaning is related to "Fandeng reading", which is hardly a coincidence.The registration and use of the opposed trademark on its designated goods will easily cause consumers to associate it with the opponent, thus causing confusion and misidentification of the source of the goods. Therefore, the opponent applies for registration of the opposed trademark without the permission of the opponentIt damages the prior name right of the dissenting shareholder "Fan Deng".
2. Case analysis
This case focuses onWhether the opposed trademark violates the provisions of Article 32 of the Trademark Law.
Whether the opposed trademark violates the provisions of Article 32 of the Trademark Law.Natural persons enjoy the right to name and have the right to decide, use, change or license others to use their name according to law, provided that they shall not violate public order and good customs.
In the opposition procedure, it is necessary to review and determine the popularity and influence of the name holder according to the documented evidence. Where, without permission, another person's name is applied for trademark registration, which causes or may cause damage to the right of the name of another person, the contested trademark shall not be approved for registration in accordance with Article 32 of the Trademark Law. In this case, Article 32 of the Trademark Law shall applyTwo requirements need to be met：
1. The contested trademark contains Fandeng's name in its entirety.
2. The registration of the disputed trademark has caused or may cause damage to Fandeng's right to name.
The programs, works, personal honors, advertising and offline activities of Fan Dengshu provided by the opponent in this case, photocopy of Fan Dengshu's ID card, introduction of Fan Dengshu and Fan Dengshu on Baidu Encyclopedia, reports on Fan Dengshu by TV stations, media, magazines, newspapers and other media, etc., can prove that:Fan Deng is the founder and shareholder of the dissident brand. His name "Fan Deng" and the brand "Fan Deng Reading" created by him have gained certain popularity among the relevant public after long-term use and extensive publicity.The opposed trademark "Fandeng Booktong" contains the name of the opposing shareholder "Fandeng", and the meaning is related to "Fandeng Bookreading".
Therefore, the opposing party applied for the registration of the opposed trademark without the permission of the opposing party, which damages the prior name right of the opposing shareholder "Fandeng".
3. Typical significance
The right of name is an important personality right, and the name of the founder and shareholder of the brand as a trademark has important commercial value.For this reason, many applicants use the names of well-known figures as trademarks, so that consumers mistakenly believe that the goods come from the name owner himself. Unlike ordinary people's name rights, well-known people attract a lot of fans, which in turn forms the economic behavior of fans, and also increases the user's trust in the product among ordinary potential users. More importantly, the quality of the goods marked with the names of well-known figures cannot be guaranteed, so the negative impact will also infringe on the reputation right of the name owner. Without the permission of the owner of the right of name, apply for registration of the trademark with his name as the main body, and obtain unfair market competitive advantages from it should be resolutely cracked down on.
Source: Trademark Knowledge Circle
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