Appellant:Hangzhou Miaojie Sanitary Ware Co., LTD, No.12 Xinhong Road, Xinwan Street, Qiantang New District, Hangzhou City, Zhejiang Province, China
Appellee:National Intellectual Property Administration (CNIPA), No.6, West Tucheng Road, Jimen Bridge, Haidian District, Beijing.
The third party：Yu Junhui
The sued decision：The decision was to recognize that the proposed trademark has not been used in a true, legal and effective commercial way on the approved commodities during the period of April 8, 2015 and April 7, 2018 (hereinafter referred to as the designated period), and the proposed trademark shall be canceled.
In this case, firstly, according to the shop information of "Miaojie Flagship Store" and "Miaojie bathroom cabinet", the appellant opened Taobao, Tmall online shops before the designated date and has been operating them till now. And the products sold in the above shops include "bathroom hardware accessories set" and other similar products which belong to the "hardware, metal furniture parts, metal hooks (fasteners)" designated by the proposed mark. Secondly, the Taobao transaction orders and order logistics information submitted by the appellant during the litigation period of selling “Miaojie space aluminum towel ring, bathroom pendant towel ring, towel ring and hanging ring” to Qi Fenglin on July 13, 2015 can be supported by the information stated in the Zhejiang VAT invoice with No. 05384897 submitted by the Appellant at the trademark review stage. And it is the general business practice for the invoices not to show the trademark. So above evidences can form a complete evidence chain. Besides, considering the order information and invoices submitted by the Appellant of selling the products bearing the proposed mark to other subjects on online platforms, our court thinks that the present evidences can prove that the proposed trademark has been used in a real, effective and public way on "hardware, metal furniture parts and metal hooks (fasteners)" within the designated period. And the registration of the proposed mark shall be maintained on above mentioned products, and the sued decision shall be canceled.
To sum up, in accordance with Item (1) of Article 70 of the Administrative Procedure Law of the People's Republic of China, the Court made the following judgment:
- It is decided to revoke the reexamination decision of the appellee, National Intellectual Property Administration, No. 285421 [2019] on the trademark cancellation of No. 8055184 "妙洁";
- The appellee, National Intellectual Property Administration, shall make a new decision on the cancellation application of Yu Junhui against the trademark No. 8055184 trademark "妙洁".
