China's Trademark Law stipulates that trademarks approved and registered by the Trademark Office, including commodity trademarks, service trademarks, collective trademarks and certification trademarks, enjoy the exclusive right to use trademarks and are protected by law. If it is a well-known trademark, it will be protected by cross-category laws.
Trademarks protect trademark registrants by ensuring that they have the exclusive right to indicate the source of goods or services or to license others to use them for compensation.
Broadly speaking, trademarks reward trademark registrants to gain recognition and economic benefits, thus promoting the positive and enterprising spirit of the world.
Trademark protection can also prevent unfair competitors, such as counterfeiters, from using similar distinctive signs to promote inferior or different products or services. This system enables skilled and enterprising people to produce and sell goods and services under as fair a condition as possible, thus promoting the development of international trade.
Trademark is an important part of products and packaging pictures. A trademark with exquisite design, profound meaning, novelty and outstanding personality can well decorate products and beautify packaging, so that consumers are willing to buy it.
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How to judge whether a registered trademark is deceptive? Recently, the dispute between Zhejiang Tapai Shaoxing Liquor Co., Ltd. (hereinafter referred to as Tapai Company) and COFCO Great Wall Liquor Co., Ltd. (hereinafter referred to as COFCO Liquor Company) once again sounded the alarm of "deceptive trademark" for trademark applicants.
Recently, the dispute between the two sides has made new progress. According to the final judgment made by the Beijing Higher People's Court, the court found that the trademarkNo. 10895337 "PAGODABRANDDONGNIANG and its map" (hereinafter referred to as the disputed trademark) was used on other approved goods except rice wine, which easily made the relevant public misunderstand its production technology, processing method, production time and other characteristics, and its use on 35 kinds of goods such as rice wine, sake and yellow wine was deceptive.
At this point, the dispute between the two parties came to an end temporarily, and the ruling of the Trademark Review and Adjudication Board (hereinafter referred to as the Trademark Review and Adjudication Board) declaring the disputed trademark invalid was finally revoked, and the ruling made a new ruling on the request for invalidation made by COFCO Liquor Company.
Registered trademarks are in a crisis of invalidation.
The reporter learned that Tapai Company was incorporated in 1995 65438+ 10, and was recognized as the traditional manual Shaoxing yellow wine brewing demonstration base in 20 13 65438+ 10.
The disputed trademark was applied for registration by TAP Company to the Trademark Office on May, 2002 12, and was granted registration after the objection procedure. Approved for fruit wine (containing alcohol), wine, alcoholic beverages (except beer), yellow wine, sake, yellow wine, cooking wine, shochu, etc. on August 13.
On February 2, 20 16, COFCO Liquor Company filed a request for invalidation of the disputed trademark with the Trademark Review and Adjudication Board, claiming that the use of the disputed trademark on alcoholic products is a direct description of the production technology, processing method and quality of the product, and lacks the distinctive features of the trademark.
At the same time, the "hand-brewed" series of trademarks were originally created by COFCO Liquor Company and enjoyed the prior right of use. The disputed trademark is similar to well-known series of trademarks such as "hand-brewed" and "Huang Zhong Huang hand-brewed", which is the preemptive registration of its trademark and damages its prior right to use.
In addition, the registration of disputed trademarks is deceptive, and it is easy for the public to misunderstand the quality and other characteristics of goods. The registration of disputed trademarks will disrupt the market order and cause adverse social impact.
It is reported that within the statutory time limit, Tower Brand Company did not reply to the Trademark Review and Adjudication Board.
On October 28th, 20 16/kloc-0, the Trademark Review and Adjudication Board made a ruling on the request for invalidation, holding that the disputed trademark did not directly indicate the characteristics of the production technology and processing method of the approved goods as a whole, nor did it belong to a sign that was harmful to socialist morality or had other adverse effects.
COFCO Liquor Company has no evidence to prove that it uses "hand-brewed" as a trademark alone, and the disputed trademark is obviously different from the well-known "Huangzhonghuang hand-brewed" series trademarks advocated by COFCO Liquor Company in terms of appellation and appearance. Tapai Company did not pre-register the trademark that COFCO Liquor Company had used and had certain influence by improper means.
However, the Trademark Review and Adjudication Board believes that the registration and use of disputed trademarks on wine, rice wine and other alcoholic commodities will easily make consumers think that the goods marked by them are hand-brewed in winter, and then misunderstand the production technology, processing methods, production time and other characteristics of the goods approved for use with disputed trademarks. To sum up, the Trademark Review and Adjudication Board ruled to declare the disputed trademark invalid.
Tapai Company refused to accept the ruling made by the Trademark Review and Adjudication Board, so it filed an administrative lawsuit in Beijing Intellectual Property Court, and submitted to the court the inspection report, technical introduction and the honor won by Tapai Handmade Winter Brewing Yellow Rice Wine, and claimed that its Handmade Winter Brewing products were brewed at low temperature in winter, and the series of Handmade Winter Brewing products had controversial trademark performance.
Whether it is deceptive is clarified.
Beijing Intellectual Property Court held through trial that "hand-made winter brewing" is a processing technology and method of alcoholic commodities, which means "hand-made winter brewing". The evidence submitted by Tapai Company can prove that the yellow rice wine produced by Tapai Company is handmade, and the description of the disputed trademark neither deviates from the inherent characteristics of the commodity nor conforms to the facts, so the disputed trademark is not deceptive.
At the same time, the "tower card and picture" in the disputed trademark has no direct connection with the goods approved for use in the disputed trademark, which has strong significance. Although "handmade winter brewing" is the processing technology and method of alcoholic commodities, the relevant public recognizes the trademark through the whole trademark. In the case that "tower cards and pictures" have strong significance, it should not be considered that the disputed trademark does not have obvious characteristics.
To sum up, the Beijing Intellectual Property Court ruled in the first instance to revoke the ruling made by the Trademark Review and Adjudication Board and ordered it to make a new ruling.
The Trademark Review and Adjudication Board refused to accept the judgment of the first instance and appealed to the Beijing Higher People's Court, claiming that "hand-made winter brewing" is a processing technology used to describe the characteristics of the manufacturing technology and processing methods of designated goods. The Chinese character combination "handmade winter brewing" in the disputed trademark is relatively independent in the logo and is a significant part of its identification.
When the disputed trademark is approved for use on wine, soju and other alcoholic commodities, it is easy for the relevant public to misunderstand the production process and other characteristics of the goods approved for use with the disputed trademark.
After trial, the Beijing Higher People's Court held that the disputed trademark consists of Chinese "Tower Brand" and "Handmade Winter Village", English "PAGODABRANDDONGNIANG" and graphics, and both "Tower Brand" and "Handmade Winter Village" belong to the distinctive identification part of the disputed trademark.
Although "hand-made winter brewing" is a processing technology and method of yellow rice wine, the evidence in the case file is not enough to determine that the disputed trademark is used in yellow rice wine, which may easily make the relevant public misunderstand the production technology, processing method, production time and other characteristics of the product.
However, the use of controversial trademarks on other approved commodities, such as wine, rice wine, shochu, etc. , it may mislead the relevant public about the characteristics of related goods, such as production technology, processing methods, production time, etc. , and the use of disputed trademarks on the above goods is deceptive.
To sum up, the Beijing Higher People's Court rejected the appeal of the Trademark Review and Adjudication Board and upheld the judgment of the first instance. (Wang) According to
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