Gaowo represented the litigation of review filed by the appellant Jiangxi Boming against the appellee CNIPA.
Basic information:
The appellee, CNIPA, decided that proposed mark “
”with No.28464184 and the cited mark “
” with No.23650514 constituted the situation referred to by Article 31 of Trademark Law, so the proposed mark should be refused.
The opinion of the Court:
The focus of the case is whether the proposed mark and the cited mark constitute similar trademarks in respect of similar services.
The provisions of Article 31: where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary approval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published. In this case,considering the appellant accepts that the services designated by the proposed mark are similar to those designated by the cited mark, the Court confirms that.
Thus, the key point of this case is whether the proposed mark is similar to the cited mark.
Trademark similarity refers to the similarity in the fonts, pronunciation, meaning of trademark text and the graphics of the devices, or the overall arrangement and appearance similarity of the combination of words and devices, and it will cause confusion among consumers about services origin if used on identical or similar services. However, if the holder of the cited mark is canceled and there is no evidence to prove the existence of the inheritance subject of rights and obligations, it can be concluded that the cited trademark and the proposed trademark do not constitute similar trademarks.
In this case, the proposed mark contained Chinese characters “好享福” and devices, while the cited mark contained Chinese characters “享福” , letters “GO” and a device. And the proposed mark and the cited mark both contain Chinese characters “享福” and they are similar in words contained and pronunciation. However, during examination, we found that the holder of the cited mark , Chengdu Ruifeng, was canceled on July 16, 2019. And there is no evidence to prove the existence of the inheritance subject of rights and obligations, so the registration and use of the proposed mark will not cause confusion among the relevant public. And the application for registration of the proposed mark on the designated services “provide business information through the website; franchise business management” did not violate the provisions of Article 31 of Trademark Law.
Because the facts based on which the sued decision was made by the appellee have changed and can have a direct impact on whether the proposed mark will be published, so according to the changed situation, the sued decision should be revoked.
In conclusion, the sued decision should be revoked. But the situation is changed after the sued decision was made and it is not due to the appellee that the situation is changed. Therefore, the costs of this case shall be borne by the appellant. According to the provisions of Item (1) of Article 70 of Administrative Procedure Law of the People's Republic of China and the provisions of Article 28 of Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Concerning the Authorization and Affirmation of Trademark Rights, our Court made the following judgment:
1.The sued decision about the trademark “好享福” with No.28464184 made by
CNIPA shall be revoked;
2.The appellee, CNIPA, shall make a new decision about the review application
for the mark “好享福” with No.28464184 filed by Jiangxi Boming.
The cost for this case is 100 RMB which should be borne by the appellant, Jiangxi Boming.
