Dissatisfied with the review decision made by CNIPA that the proposed mark with No.22851072 should be refused according to the provisions of Article 30 and Article 34 of Trademark Law, the Plaintiff, Wang Muyun, filed a lawsuit with Beijing Intellectual Property Court. And after checking, the court made a judgement to cancel the decision of the defendant, CNIPA , and ask the defendant to make a new one.
The proposed mark:
Cited mark 1:
Cited mark 2:
Cited mark 3:
Cited mark 4:
Cited mark 5:
According to the statements of both sides, the focus of this case is whether the proposed mark conforms to the provisions of Article 30 of Trademark Law. Considering that the plaintiff agrees that the services designated by the proposed mark are similar to the services designated by the five cited marks, the key of this case is whether the proposed mark is similar to the five cited marks.
The similarity of trademark indicates that the font of words contained in the trademark, pronunciation, meaning,or the appearance of the device are similar or the the overall arrangement and combination of words and devices are similar, and it will arise confusion about services origin if they are used on identical and similar services.
In this case, the proposed mark consists of words“SPICERYHOUSE”and ”SH”; cited mark 1 Chinese characters “辣屋”，English words “KARAIYA” “SPICE·HOUSE”and device; cited mark 2 the English word “SPICEHOUSE”. And cited mark 3 is composed of English words”YH” and “Business”and its holder gave up the exclusive right of “Business”. Cited mark 4 and 5 both contain only device.The“SPICERYHOUSE”of the proposed mark completely contains the distinctive part “SPICE·HOUSE”of cited mark 1 and “SPICEHOUSE”of cited mark 2. So the proposed mark is similar to cited mark 1 and 2 in composition, appearance and pronunciation. The “SH” of the proposed mark , after artfully designed, can be distinguished as “YH”.The“YH”part of cited mark 3 is the distinctive part. And cited mark 4 and 5 can be easily distinguished as“YH”. So the proposed mark is similar to cited mark 3,4 and 5 in composition and pronunciation. And according to the website printout of the national enterprise credit information publicity system submitted by the plaintiff, the holder of cited mark 5,Dongguan Yuhu Biotechnology co., ltd. has been canceled on July 23, 2015.Because the holder of cited mark 5 has been canceled on July 23, 2015, and years have passed since then. No other evidences show that cited mark 5 has been inherited or used by new right subject, so the registration of the proposed mark will not cause confusion among the public and the application for registration of the proposed mark on the designated service “Looking for sponsorship”did not violate the provisions of Article 30 of Trademark Law.
In conclusion, the proposed mark was used on the service “Looking for sponsorship”, which is not similar to cited mark 5 in respect of similar services and did not violate the provisions of Article 30 of Trademark Law. So the Court made a judgement to cancel the review decision made by CNIPA and asked the CNIPA to make a new one.