Gaowo represented the litigation of of invalidation filed by the appellant Chongqing Xuanai against the appellee CNIPA. The third party is Shenzhen Xuanai.
Basic information：
The proposed mark：20511255
The cited mark：15714708
The Appellee ,CNIPA, decided that the proposed mark was similar to the cited mark “渲爱彩”. And violating the provisions of Article 30 of Trademark Law, the proposed mark shall be invalidated.
The opinion of the Court:
The court holds that the focus of dispute of this case is whether the proposed mark is similar to the cited mark in respect of similar or identical products
Based on that the appellant agreed that the products designated by the proposed mark and the cited mark are identical or similar, our court confirms it.
In this case, the proposed mark consists of Chinese characters “宣爱一枚宣爱钻戒，一世真爱承诺”, among which “宣爱” is the main part, so it is the distinctive part of the proposed mark. While “宣爱” is similar to the cited mark “渲爱彩” in composition and pronunciation, so the two marks are similar trademarks. If the two marks coexist on the market, it is easy to make the public to relate the products designated by the proposed mark to the cited mark so that misleads the public about goods origin. And the evidences submitted by the appellant are not sufficient to prove that the coexistence of the two marks will not cause confusion among the consumers. So the claim of the appellant that the proposed mark did not violate the provisions of Article 30 of Trademark Law cannot be established and supported by our court.
Besides, a trademark registrant has independent exclusive right to use different registered trademarks, and the successively registered trademarks do not of course have a continuation relationship, nor does the goodwill of the earlier registered trademark extend to the trademark applied for later. In this case, the proposed mark was assigned to Chongqing Xuanai from Shenzhen Qilongzhu on December 6, 2017. And the mark “宣爱” with No.11881981 of the appellant has been canceled by CNIPA based on non-use for 3 consecutive years. And the evidences submitted by the appellant are not sufficient to prove that after long-term use and promotion of the mark “宣爱” with No.11881981, the relevant public can establish a relatively stable relationship between the proposed mark and the mark “宣爱” with No.11881981 so that they can distinguish the proposed mark from the cited mark. So the claim of the appellant that the proposed mark is the inheritance and continuation of the canceled mark “宣爱” with No.11881981 is without foundation, so our court shall not support it.
To sum up, the sued decision is made based on conclusive evidences, correct and applicable laws and regulations and it also complies with legal procedures. The appellant’s claim cannot be established and our court shall not support it. In accordance with the provisions of Article 69 of the Administrative Procedure Law of the People's Republic of China, the Court made the following judgment:
Refuse the claim of Chongqing Xuanai.
