Appellant: Quanzhou Moment Anti-Theft Electronics Co., LTD., No. 151 Chongxiang Street, Quanzhou Economic and Technological Development Zone, Fujian Province.
Appellee: National Intellectual Property Administration (CNIPA), No.6, West Tucheng Road, Jimen Bridge, Haidian District, Beijing.
In this case, the cited trademark ("真时刻") is still a valid registered trademark, its owner has been cancelled, and there is no evidence that the cited trademark has been succeeded by another right holder, for the holder of the cited trademark for no use, it shall not be used in the supermarket and cause the relevant public confusion and misidentification of the litigious trademark ("时刻云及图") and the cited trademark in this case. Therefore, the litigious trademark does not constitute the situation stipulated of Article 30 of the Trademark Law, and the appellant Quanzhou Moment Anti-Theft Electronics Co., LTD. 's lawsuit reason is established, which the court supports.
The trademark rejection review case is a unilateral procedure. The holder of the cited trademark does not participate in the proceedings. In the absence of sufficient proof and debate for the trademark in dispute and the trademark in proof, the popularity of the trademark in dispute cannot be considered.
Because the appellant did not submit the evidence that the trademark owner had cancelled in the trademark rejection reexamination stage, therefore, the litigation cost of this case shall be borne by the appellant Quanzhou Moment Anti-Theft Electronics Co., LTD.
To sum up, if the decision of the accused is wrong in determining facts and wrong in applying the law, the court shall cancel it according to law. In accordance with Item (1) and (2) of Article 70 of the Administrative Procedure Law of the People's Republic of China, the Court made the following judgment:
1. It is decided to revoke the reexamination decision of the appellee’s, National Intellectual Property Administration, No. 294919 [2019] on the trademark rejection of No. 30970602 "时刻云及图";
2. The appellee, National Intellectual Property Administration, shall make a new decision on the application for rejection and reexamination submitted by the appellant Quanzhou Moment Anti-Theft Electronics Co., Ltd. against the trademark No. 294919 concerning the No. 30970602 trademark "时刻云及图".
