"If you know the judicial tendency from yourself and others, then everything can be predicted so as to avoid risks." By Legal Department of Asia Smart
In many news reports, Song Yushui, president of Beijing Intellectual Property Court, stressed that "when applying for registered trademarks, business operators should enhance independent brand awareness, focus on brand development, and stay away from counterfeiting, plagiarizing and other spiteful behaviors."
Therefore, in the judicial stage, in order to protect well-known brands, the dishonest behaviors are strictly prohibited.
Then the approximate judgment criterion for well-known trademarks and ordinary trademarks are quite different. The recent first instance judgment issued by Beijing Intellectual Property Court in this article reflects the special protection for well-known trademarks.
Introduction of the Case
Hsu Fu Chi Company was founded in China in 1992, and its brand registration was born in 1994. It has a place in the industry of producing New Year candy, wedding candy and leisure candy.
In recent years, Hsu Fu Chi Company has successively declared the trademark invalidation for "Huang Fu Ji" and "Sheng Fu Ji" for many times.
The disputed trademark in this case is applied by Sheng Fu Ji Company and approved for use in the 29th category goods of "fish food, canned fruit, eggs, processed nuts", which is also filed a request for invalidation by Hsu Fu Chi Company.
On March 21, 2018, the Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce issued a ruling invalidating the disputed trademark. Sheng Fu Ji Company refused to accept the ruling and filed an administrative lawsuit with Beijing Intellectual Property Court.
Disputed Trademark Sample
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Cited Trademark Sample
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Sheng Fu Ji Company alleges:
First, the disputed trademark of Sheng Fu Ji Company is obviously different from that of Hsu Fu Chi Company in terms of overall visual effect. The cited trademark is of pure text, and disputed trademark is the integration of graphics and characters. The first word of the disputed trademark is different from that of the cited trademark, and the actual meaning of the trademark is accordingly different.
Second, the pronunciation of the disputed trademark is different from that of the cited trademark. The pronunciation of the disputed trademark is "shengfuji", while the pronunciation of the cited trademark is "xufuji". Therefore, the disputed trademark and the cited trademark can be distinguished in terms of text composition, spelling, meaning and other aspects, which proves that they are not the similar trademarks.
Third, a number of "X+ Fu Ji" trademarks have been approved for registration. To sum up, the Court is requested to rescind the verdict and order the defendant to make a new ruling.
The Court’s Opinions
The disputed trademark is composed of Chinese characters "聖福記" and the picture. The cited trademark 1 & 2 are composed of Chinese characters "徐福記", and the cited trademark 3 to 8 are composed of Chinese characters "徐福記" and the picture.
The disputed trademark and the cited trademark 8 are similar in character composition, spelling and overall visual effect. If they are used on the same or similar goods, it is easy to confuse or misunderstand the source of the goods or believe that there is a specific relationship between the sources of the goods.
The evidence submitted by the plaintiff is not enough to prove that the use of the disputed trademark has been distinguished from the cited trademark 8, and the relevant public will not confuse and misrecognize it.
Therefore, the disputed trademark and the cited trademark 8 are the similar trademarks if they are used on the same or similar goods, which violates the provisions of Article 30 and Article 31 of the Trademark Law.
In addition, the trademark review follows the principle of case review, and the registration of other trademarks cannot be the basis on which the trademark in this case should be approved for registration.
The result of the first instance:
The court found that the trademark No. 13705835 registered by the plaintiff Shandong Sheng Fu Ji Food Co., Ltd. could not be distinguished from the first eight cited trademarks of Hsu Fu Chi International Holdings Group Co., Ltd., thus rejected the plaintiff's claim.
Asia Smart’s Analyses
Generally speaking, when comparing three-character Chinese trademarks, in the case of different initial pronunciation and shape, they will not be regarded as the similar trademarks according to the review standard, but there are exceptions, in which the popularity of the cited trademark is a very important factor to be considered.
In addition, the disputed trademark in this case also uses traditional Chinese characters, and there is a retro circular design on the whole visual effect, which is very similar to the design of the citied trademark Hsu Fu Chi.
Therefore, under such circumstances, the judge will subjectively presume that there is a famous brand imitation intention in the application of the disputed trademark, then the probability that the case will be supported by the judge will be relatively small.
If the overall design and the initials of title are different, whether the trademark in this case is similar to the cited trademark is another matter.
Another reminder: this is only the judgment of the first instance of Beijing Intellectual Property Court. Whether the judgment will be changed in the second instance needs to be followed up.
But we can understand the trial thoughts of Beijing Intellectual Property Court through this case.
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