On the 23rd, this issue released the final review of the "Chen Mahua" trademark dispute! Chongqing Chen Twist Company won the article of State Intellectual Property Office, which caused heated discussion. After many years of dispute over the "Chen Mahua" trademark, the second trial has finally settled. Today we review this case and interpret the "Chen Mahua" trademark case, what should companies think about.
The trademark “Chen Mahua” No. 13488202 involved in the case (hereinafter referred to as the “contentious trademark”) was applied for registration by Chen Mahua Company on November 05, 2013, and was approved for registration on November 07, 2017, and was designated for use in the 30th category “Twinkle” ; Pastries; Strange flavored beans; Rice noodles; Black flakes; Rice cakes; Sweets (candies); Moon cakes; Sesame paste; Amber peanuts "on the commodity item.
Does the "Chen Twist" trademark belong to the common name of twisted goods, or does it violate the provisions of Article 11, paragraph 1, paragraph 1 of the "Trademark Law"? The courts of the first and second instance made very different fact determinations:
The court of first instance held:
"Chen twist" itself is not very recognizable. "Chen" is a common surname. "Twist" is a common name for a food. Both are public domain resources. The combination of surname and food name is used to name the enterprise in Chongqing. It is also common. As of 2013, there were 12 “Chen Mahua” shops in Ciqikou Ancient Town, Chongqing City. Chen Mahua Company did not use “Chen Mahua” as a trademark in the specific use process. Practitioners and consumers in related industries did not think There is a unique correspondence between "Chen Mahua" and Chen Mahua, and "Chen Mahua" is not recognized as a trademark. Therefore, before 5 November 2013, "Chen Mahua" has become a kind of twist in Ciqikou area of Chongqing. The common name of the commodity. At the same time, the trademark in dispute has been used by many merchants including the third party in the original trial in the production, operation, sales, inspection and other links in the Ciqikou area of Chongqing City, resulting in the further deterioration of the distinctiveness of its logo and no longer being recognized The function of the source of the commodity. In summary, the application for trademark registration violates the provisions of the first paragraph of Article 11, Paragraph 1 of the Trademark Law.
The court of second instance held:
Conventional common names are generally based on the general recognition of the relevant public in the country or related markets, but historical inheritance, industry conditions, and product characteristics are factors that affect the relevant public's cognitive level. In judging whether it constitutes a conventional common name Should be considered.
In the end, the court of second instance held that the evidence submitted by the third person of the original trial was not sufficient to prove that "Chen Mahua" was a standardized trade name, and that it was not enough to prove that "Chen Mahua" became a common name when the disputed trademark was approved for registration. No violation of the provisions of the first paragraph of Article 11, Paragraph 1 of the Trademark Law.
Regarding whether the designated use of the trademark text "Chen Mahua" in the category 30 commodity item violates the provisions of Article 10, paragraph 1, paragraph 7 of the "Trademark Law", the facts of the courts of the first and second instance also have different opinions:
The court of first instance held:
The disputed trademark "Chen Twist" is a common name for a twisted commodity. It is used on strange-flavored beans, amber peanuts, black flakes, pastries and other commodities. The origin, quality, main raw materials and other characteristics have misrecognized, so the registration of the disputed trademark violates the provisions of Article 10, paragraph 1, paragraph 7 of the Trademark Law.
The court of second instance held:
"Twist" in the trademark "Chen Twist" is a commodity used in commodities other than "Twist", such as "flavored beans, amber peanuts, black flakes, cakes", etc., to be recognized by the general public Ability to easily misunderstand the origin, quality, main raw materials and other characteristics of the goods marked with the disputed trademark. Therefore, the registration of the disputed trademark on commodities other than "twist" violates the provisions of Article 10, paragraph 1, paragraph 7 of the Trademark Law.
In the end, the Beijing Higher People's Court revoked the first-instance judgment and the appealed ruling in the second-instance judgment, and requested the State Intellectual Property Office to make a new ruling.
The road of Chen Mahua Company's rights protection can be described as a difficult one, but in the end, Liu Huaming, although the second trial decision only maintained the registration of the trademark used for the approval of the disputed trademark, but retained the main merchandise items, after the "Chen Mahua" trademark focus It's not a pleasure to make twists!
This judgment also puts a successful end to the debate in the theoretical circle on whether "Chen Mahua" is a common name for commodities. Thoughts caused by the case itself: how to avoid the trademark becoming the common name of the product?
According to the first paragraph of Article 11, Paragraph 1 of the Trademark Law, only the common name, graphics and model of this product shall not be registered as a trademark. If a registered trademark is recognized as a common name of a commodity in daily life, any unit or individual may apply to the Trademark Office for the cancellation of the registered trademark in accordance with the provisions of Article 49, paragraph 2 of the Trademark Law , And the trademark registrant will lose the trademark right.
So how to avoid the trademark becoming the common name of the product? It is recommended to use strong words in design and creative trademark logos, avoid using words that summarize the characteristics of products, and try to avoid using trademark names instead of product names when promoting, and develop a complete intellectual property protection system, while targeting the market Of infringements actively protect rights!
From the perspective of "Chen Twist Company" and the rights protection of enterprises, what inspiration should companies have?
Trademark dispute cases are hardly seen at the last minute! Therefore, choose a professional agency and do everything in your power to take up the arms of the law to defend your legitimate rights and interests, and stick to the end, there may be a scene of another village in the dark!
Here, the author thought of another case, which is similar to the case in this case. The trademark case is also full of twists and turns! After going through the administrative stage, the first instance, the second instance, and the re-examination, the legal rights and interests of the trademark owner are finally protected.
The applicant "Xiamen Sanjiang Shengda Trading Co., Ltd. Chengxiang Office" (hereinafter referred to as Sanjiang Shengda Company) applied for the trademark "VIZIT and Figure" No. 8467866 (hereinafter referred to as the disputed trademark) by Beijing Zhixian Electronics Co., Ltd. (Referred to as Beijing Zhixian Company) to apply for withdrawal.
01Administrative stage
The State Intellectual Property Office reviewed and rejected Beijing Zhixian's application for revocation, that is, the disputed trademark was valid; during the reexamination, the State Intellectual Property Office decided to revoke the disputed trademark.
02First trial
The judgment of the court of first instance dismissed the litigation request of Sanjiang Shengda Company, and the disputed trademark was revoked.
03Second trial
The judgment of the court of second instance: Dismissed Sanjiang Shengda's appeal and upheld the original judgment, that is, the disputed trademark was revoked.
04Retrial stage
Sanjiang Shengda Company filed a lawsuit request with the Supreme People's Court by supplementing the relevant use evidence. The Supreme Court decided to revoke the administrative judgments made by the courts of first and second instance and the decision of the State Intellectual Property Office to revoke the review, that is, the disputed trademark remained in force.
Therefore, it is not a real end for registered trademarks to go through administrative opposition / withdrawal / rejection, reexamination or even first and second trial, hiring a professional agency to guide and plan the intellectual property rights of the enterprise, and take up the law when their own rights are damaged Weapons to protect their rights and thus truly protect their interests! Often because of professionalism, perseverance, and perseverance, the case will eventually blossom and turn the corner!
