Demandant: Jiangsu Anda Lubricating Oil Co., LTD., Jinxing Industrial Park, Guozhuang Town, Jurong City, Jiangsu Province.
Defendant: National Intellectual Property Administration (CNIPA), No.6, West Tucheng Road, Jimen Bridge, Haidian District, Beijing.
The demandant, Jiangsu Anda Lubricating Oil Co., LTD., (hereinafter referred to as Anda Company) has filed an administrative lawsuit to the court within the legal time limit against the reexamination decision of "奥普顿" trademark rejection made by the National Intellectual Property Administration on November 26, 2019.
The National Intellectual Property Administration made the decision to be prosecuted on November 26, 2019.
After investigation, the cited trademark “奥普顿AUPTON" was invalidated on all the products by the National Intellectual Property Administration on May 13, 2020, and the announcement date was No. 1695.
The Court holds that: in accordance with Article 30 of the Trademark Law, the Trademark Office shall reject the application and shall not publish any trademark that is not in conformity with the relevant provisions of this Law or that is identical with or similar to a trademark that has been registered or preliminarily approved on the same or similar service. In this case, the cited trademark has been invalidated by the National Intellectual Property Administration on all the commodities, so the application trademark and the cited trademark do not constitute the circumstances referred to in Article 30 of the Trademark Law.
In conclusion, CNIPA should make a new examination decision in accordance with the new facts. However, since the status of the cited trademark changed after the decision was made, it is advisable for the demandant to bear the litigation costs in this case. In accordance with Item (1) and Item (2) of Article 70 of the Administrative Procedure Law of the People's Republic of China, the Court made the following judgment:
I. The decision of the CNIPA on the reexamination of the trademark rejection of No. 284495 [2019] "奥普顿" made by the National Intellectual Property Administration on November 26, 2019 shall be revoked;
2. After this judgment takes effect, the National Intellectual Property Administration shall make a new review decision on the request to reject the trademark "奥普顿" of No. 34262583 of Jiangsu Anda Lubricating Oil Co., LTD.
