Gaowo represented the litigation of invalidation filed by the appellant Longyan Shuanggu against the appellee CNIPA. And the third party is Zhang Bing.
Basic information:
The appellee, CNIPA, decided that proposed mark “双固”with No.14029029 did not violate the provisions of Article 30, Article 15, Article 32, Item 7 and 8, Paragraph 1, Article 10, and Paragraph 1, Article 44 of Trademark Law, so according to the provisions of Article 44, Article 45 and Article 46 of Trademark Law, the registration of the proposed mark should be maintained.
The opinion of the Court:
The focus of this case is whether the proposed mark violated the provisions of Article 30, Article 15, Article 32, Item 7 and 8, Paragraph 1, Article 10, and Paragraph 1, Article 44 of Trademark Law.
Firstly, the designated products of the proposed mark include pigments, coatings, wood preservatives and natural gums and such like. While the products designated by the cited mark are adhesives and adhesives for industrial use. The products designated by both sides are different in function, use and target consumers, so they are not identical or similar products. Therefore the proposed mark and the cited mark did not constitute the situation referred to by Article 30 of Trademark Law.
Secondly, the application of the second paragraph of Article 15 and Article 32 of the Trademark Law is based on that the use of the proposed trademark is on the same or similar goods as the trademark previously used by others, or the goods approved for use of the proposed trademark are the same or similar business scope of the enterprise claiming the prior trade name. In this case, the designated products of the proposed mark and the cited mark are not similar, so the Court shall not support the related claims of the appellant.
Thirdly, the proposed mark itself is not deceptive and will not mislead the public about the quality of the products or their origin place. And neither did the proposed mark constitute the situation that is harmful to socialist morality or will cause other adverse effects. Therefore the registration and use of the proposed mark did not constitute the situation referred to by Item 7 and 8, Paragraph 1, Article 10 of Trademark Law.
At last, that the situation where the registration of a trademark was acquired by fraud or any other unfair means referred to by paragraph 1 of Article 44 of Trademark Law means the applicant acquired the registration of a trademark by fraud or any other unfair means, including the act of forging the signature and seal of the application form, the qualification certificate of the applicant subject or other supporting documents. In this case, the appellant has provided preliminary evidence to prove that the subject qualification certificate provided by the third party when applying is inconsistent with the information recorded by the industrial and commercial registration authorities. And the evidences provided by the appellee are not clear and cannot prove the third party has the qualification of self-employed business, and the third party has not submitted the relevant qualification certificate in the invalidation stage and the litigation stage. Therefore, in the absence of contrary evidence, it should be determined that the third party obtained the registration of the proposed trademark with false documents and it has constituted the situation of acquiring the registration by fraud or other unfair means referred to by Article 44 of Trademark Law.
In conclusion, the sued decision was issued based on unclear facts and should be revoked. According to the provisions of Item (1) of Article 70 of Administrative Procedure Law of the People's Republic of China, our court decided:
- The sued decision about the mark “双固” with No.14029029 made by CNIPA should be revoked.
- The CNIPA should make a new decision.
The cost for this case is 100 RMB which should be borne by the appellee, CNIPA.
