Administrative judgment
of Beijing higher people's court
- 4451
The sued decision:
On August 27th, 2018, the original Trademark Review and Adjudication Board (TRAB) made a decision to refuse the registration of the proposed mark on the reviewed products according to Article 30 of Trademark Law based on the similarity between the proposed mark and the cited marks.
Proposed mark：
Cited mark 1：
Cited mark 2:
Cited mark 3：
Beijing IP Court: the proposed mark is not similar to the three cited marks in respect of similar products. In the original trial, Jiangsu Tianyi submitted use evidences, but the evidences are not related to the proposed mark. So the Beijing IP Court will not take the evidences into consideration. And according to the Article 70 of Administrative Litigation Law, the Beijing IP Court made a judgement :1) revoke the sued decision;2) ask the CNIPA to make a new decision.
Beijing higher people's court thinks the focus of dispute of this case is whether the proposed mark is similar to the cited marks or not.
In this case, the outline of the proposed mark is an oval and and the interior is outlined with simple white lines. The device outlined by the lines is relatively abstract and can be identified by the public as a bird, but it is difficult to be identified as a pigeon. The outline of cited mark 1 is an oval with the device of a pigeon inside , Chinese characters “玉鸽” in the middle and the bopomofo “YUGE” below the Chinese characters. It is the Chinese characters “玉鸽” that is the distinctive part. While cited mark 2 is set on the background of a black square, which is composed of the devices of a white pigeon and the sun, Chinese characters “元农” and its bopomofo “YUAN NONG”. And it is the Chinese characters “元农” that is the distinctive part. And cited mark 3 is composed of the device of a pigeon, a circle, Chinese characters “秋浦王” and its bopomofo. And it is the Chinese characters “秋浦王” that is the distinctive part.Compared with the cited marks, the device part of the proposed mark is obviously different from the cited marks in components and overall appearance. Besides, the distinctive parts of the three cited marks are their Chinese characters, which increases their distinctiveness. The proposed mark is not similar to the three cited marks and if the proposed mark and the cited marks are used on identical or similar products, it will not cause confusion among the relevant public easily about goods origin when the public pays general attention. The proposed mark are not similar to the three cited marks in respect of similar products. So the grounds of appeal of the CNIPA can not be established and the Beijing higher people's court shall not support it.
