The two sides of the dispute are Twitter, an American social networking platform, and a trading company in China whose main business is to promote local products.
Liu Chen, the head of Nantong Baitai Biotechnology Co., Ltd. (hereinafter referred to as' Nantong Baitai', which was named Nantong Win World Trade Co., Ltd. when applying for trademark registration), told the rule of law reporter that he applied to the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as' Trademark Office') for registration with the word' Twitter' in the name of the company and wanted to use it to promote the e-commerce of local products.
However, after a year-long review, on March 20 1 1, the application was opposed by Twitter. The Trademark Office decided not to register the disputed trademark on the grounds that the trademark applied by Liu Chen and the' Twitter' trademark registered by Twitter Company constitute similar trademarks in similar services.
Since then, Liu Chen's plan to establish an e-commerce platform to promote local products has been forced to run aground, and the trademark game between the two sides around the word' Twitter' has also begun.
Twitter raised an objection before applying for registration as "Twitter"
On February 22nd, 20 12, Liu Chen filed an application for trademark objection review with the Trademark Office. A year later, the result of Liu Chen's arrival is still that the objected trademark (referring to the trademark applied by Liu Chen) will not be approved for registration.
Can Twitter really not be used as a trademark to sell local products? Liu Chen told the rule of law reporter that he was full of doubts when he received the reexamination ruling from the Trademark Review and Adjudication Board of the Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board). I accepted the lawyer's advice before, because I wanted to establish an e-commerce platform for selling local products, so I applied for registration of the' Twitter' trademark in the 38th category of trademark' information transmission'. Telephone communication' and other service areas.
Liu Chen said that around 2009, he noticed that the market demand for local products was increasing, but there was a lack of convenient supply channels and logistics platforms in this field. He believes that the time is ripe to establish an e-commerce platform for local products. During that time, Liu Chen and his team chose the word' Twitter' as the name of the platform. Twitter is to promote local products, which is easy for farmers to understand. '
At that time, I had no idea that there was a company called Twitter abroad. Liu Chen said,' Besides, my business has nothing to do with its business. '
On February 8, the rule of law reporter logged on the website of the State Administration for Industry and Commerce. According to the trademark inquiry data, Twitter applied for registration of the' Twitter' trademark in the 38th category of' e-mail and electronic communication services' in China in 2007, and the' Twitter' trademark belongs to the same category as the trademark applied for registration in Liu Chen.
So I missed the opportunity of e-commerce. Liu Chen told reporters under the rule of law that he had sued the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce in Beijing Intellectual Property Court because he refused to accept the reexamination ruling made by the Trademark Review and Adjudication Board, and listed Twitter as a third person, demanding that the reexamination ruling made by the Trademark Review and Adjudication Board be revoked and that word mark make a new ruling.
On February 6, the rule of law reporter called the Trademark Review and Adjudication Board of the Industrial and Commercial Bureau to find out the situation, but the phone was not connected.
According to the website information of the State Administration for Industry and Commerce, Twitter applied to the Trademark Office for registration of a trademark with the word Twitter on September 6, 20 14. At present, the business status display is not in the trademark registration application, but also registered in the field of "E-mail and electronic communication services" in the 38th category of China Trademark Classification.
Can the protection of registered English trademarks be extended to Chinese translation?
Xie Huisheng, an attorney of Liu Chen and a lawyer of Beijing Strategy Law Firm, said that one of the focuses of the dispute over Twitter trademarks is whether the protection of English trademarks of foreign companies registered in China should be extended to all Chinese translations of their English counterparts.
The protective boundary of Chinese translation names in foreign trademark should be to keep the correspondence between foreign trademark and a specific translation name. According to the spirit of China's Trademark Law and related judicial interpretations, the protection of translated names in foreign trademark should be based on the corresponding relationship between translated names and trademarks among the relevant public. Liu Ying, deputy director of the Intellectual Property Research Center of China University of Political Science and Law, told the rule of law reporter.
So in the trademark dispute between Nantong Baitai and Twitter, is there a corresponding relationship between Twitter and Twitter's registered trademark?
On February 6th, the rule of law reporter tried to contact Liu Chen to apply for a registered trademark, and entrusted Liu, an attorney who raised objections on Twitter. His assistant said that he could not be interviewed due to a business trip recently.
In the Twitter trademark objection application provided by Xie Huisheng to the Trademark Office, the rule of law reporter saw the reasons for Twitter's objection.
Twitter thinks' Twitter' is the Chinese counterpart of its trademark, but before Liu Chen applied for registration (i.e. 65438+ 1 1 day in February 2009), it had enjoyed high popularity and great influence in China, and after a lot of use,' Twitter' and' Twitter' have formed a corresponding relationship. Liu Chen is registered. To this end, Twitter company mentioned the information about Twitter reported by relevant media at home and abroad as evidence in its trademark objection application to confirm the corresponding relationship between them.
However, Xie Huisheng expressed different views to the rule of law reporters.
From the perspective of calling, although there are some similarities between the disputed trademark and the cited trademark, there is no corresponding relationship. Before the filing date of the disputed trademark, the China media transliterated the cited trademark as "Tuyite" and "Twitter", while Twitter registered the trademark "Twitter" on June 26th, 2007, and from June 2065438+June 2004+10/October 65438+March 2003, it has been "Twigt". It can be seen that Twitter itself does not recognize' Twitter' as a transliteration of' Twitter'. "Xie Huisheng said.
Xie Huisheng believes that the Trademark Review and Adjudication Board ruled after the review in Liu Chen that Twitter, as a Chinese translation of English Twitter, has been known to the relevant public in China, and has formed a corresponding relationship, expanding the protection scope of the trademark Twitter.
Liu Ying told reporters under the rule of law that whether there is a corresponding relationship depends on the evidence support of both parties and the final determination of the court, and it is not easy to jump to conclusions. The translation of foreign languages, even authoritative dictionaries, often has more than one meaning, which leads to many possibilities of free translation of foreign trademarks; As for pronunciation, there are many homophones in Chinese characters, so there is a great possibility of transliteration in foreign languages. Therefore, if the translation of foreign names is not required, the scope of the trademark prohibition right of foreign trademark owners will be infinitely expanded, and the language resources that should belong to the public domain will be substantially monopolized, thus gaining an obviously unfair competitive advantage. "
Are Twitter and Twitter similar trademarks for similar services?
Whether the' Twitter' trademark that Liu Chen applied for registration belongs to the same or similar service as the' Twitter' trademark previously registered by Twitter is also the focus of the dispute between Nantong Baitai and Twitter about the' Twitter' trademark.
In the trademark objection application, Twitter claimed that the trademark' Twitter' applied for registration in Liu Chen and its earlier used trademarks belong to the 3802 approximate group of Class 38 of the Classification of Similar Goods and Services, and are similar to its core business, which constitutes an approximate trademark designated for use by the same/similar service providers and should not be registered.
If the dissenting trademark is approved for registration, it will inevitably cause confusion and misunderstanding among consumers. Twitter stated this in the trademark objection application.
Xie Huisheng believes that there is a significant difference between Liu Chen's trademark application and Twitter's trademark service in terms of service categories. From the service content, Twitter has been approved for electronic communication services, online communication equipment rental and other services. Liu Chen's trademarks are designated to be used in information transmission, telephone communication, computer terminal communication, e-mail and other services. This service provides support for the B2B/C online trading platform established in Liu Chen, and manufacturers, distributors and agents of local products can sell local products to the public based on this website. According to the Statistical Report on Internet Development in China issued by China Internet Information Center, network applications can be divided into four categories: information acquisition, business transactions, communication and online entertainment. According to this classification, the cited trademark (Twitter) is used for communication and the disputed trademark (Twitter) is used for commercial transactions, and the two services are far from each other. "
On the other hand, in terms of service objects, the original e-commerce platform named' Twitter' is aimed at people with local product trading needs, such as manufacturers, distributors, agents, end consumers, etc., while the third-party social network platform is aimed at people with communication needs such as instant information acquisition and instant sharing, and the service objects are clearly distinguished. Xie Huisheng said.