Gaowo represented the litigation of invalidation filed by the appellant Fujian Qipilang against the appellee CNIPA. And the third party is Fujian Guanghua.
Basic information:
The product “heating apparatus for solid, liquid or gaseous fuels” designated by the proposed mark is not similar to the products designated by the mark “七匹狼SEPTWOLVES and device”with No.1229622(cited mark 1) and the mark “七匹狼” with No.12680281 (cited mark 2), so they are not similar trademarks in respect of similar products. While the proposed mark is similar to the cited mark 1 and cited mark 2 in respect of the similar products on “heating radiator; water-pipes for sanitary installations; Water faucet; heating installations;solar water heater;water closets; radiators, electric; bath heater;water purification installations ”.
The evidences submitted by the appellant are not sufficient to prove that the mark “七匹狼SEPTWOLVES and device” with No.933429 (cited mark 3) had been popular to relevant public before the proposed mark was filed. Besides, the designated product “heating apparatus for solid, liquid or gaseous fuels” of the proposed mark is totally different from the clothing for which the cited mark 3 is famous. So we shall not support the claim of the appellant of invalidating the proposed mark according to the provisions of Article 13 of Trademark Law. In conclusion, the sued decision decided that the proposed mark shall be maintained on the product “heating apparatus for solid, liquid or gaseous fuels” and invalidated on other products.
The opinion of the Court:
1.The dispute is about whether on the product “heating apparatus for solid, liquid or gaseous fuels”,the proposed mark is similar to cited mark 1 and cited mark 2 in respect of similar products indicated by Article 30 of Trademark Law.
And the sued decision decided that the proposed mark is similar to cited mark 1
and cited mark 2 in respect of similar products on the products “heating radiator; water-pipes for sanitary installations; Water faucet; heating installations;solar water heater;water closets; radiators, electric; bath heater;water purification installations”. And the appellant has no opposition to that, and our Court confirms it.
Product similarity means the similarity in function, use, production department,sales channel, etc of products or means the product which will easily mislead the consumers about goods origin and cause confusion among them. In this case, the product “heating apparatus for solid, liquid or gaseous fuels” designated by the proposed mark is obviously different from the products of cited mark 1 and cited mark 2 in function, use, sales channel, target consumers, etc. And the product “heating apparatus for solid, liquid or gaseous fuels” is large heating equipment, while the products “Small heaters; Electric heater” of cited mark 1 are small household appliance. The products from two sides are different in sales channel and target consumers. And the product “Stage smoke machine” of cited mark 2 is a device that creates smoke for stage effect, and it is different from the product “heating apparatus for solid, liquid or gaseous fuels” designated by the proposed mark in function, use, and target consumers. So they are not similar products. Although the proposed mark is similar to cited mark 1 and cited mark 2, they are used on dissimilar products, which will not lead to confusion among consumers. So the proposed mark is not similar to cited mark 1 and cited mark 2 in respect of similar products on the product “heating apparatus for solid, liquid or gaseous fuels”.
- Whether the registration of the proposed mark violated the provisions of
Paragraph 3 of Article 13 of Trademark Law;
Article 13 of Trademark Law: “Where a trademark in respect of which the application for registration is filed for use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the public and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use.”
In this case, the appellant claimed that the cited mark 3 is a famous mark on clothing products and submitted relevant evidences to prove that cited mark 3 is a famous mark.While the determination of a famous mark is based on individual cases. Although cited mark 3 has ever been recognized as a famous mark by the Court, the appellant should in this case provide evidences to prove that cited mark 3 is still a famous mark when the proposed mark is filed. Besides, it is in the year 2000 and 2007 that the cited mark was recognized as a famous mark and the proposed mark was filed on August 11, 2016. It has been almost 10 years since cited mark 3 was recognized as a famous mark last time, so the appellant should provide further evidence to prove the famous status of the cited trademark 3 has continued until the application date of the proposed trademark.But the appellant did not, before the proposed mark was filed,submit evidences to prove the operation situation of the appellant and the popularity of the mark. So according to the currently submitted evidences,our Court cannot determine that before the proposed mark was filed the cited mark 3 has become famous. So the application of the proposed mark did not violate the provisions of Paragraph 3 of Article 13 of Trademark Law.
In conclusion, the sued decision was issued based on clear facts and correct laws. According to the provisions of Article 58 and Article 69 of Administrative Procedure Law of the People's Republic of China, our court decided:
The claim of the appellant, Fujian Qipilang, should be refused.
If dissatisfied with the judgement, the parties can submit appellate petition and its copy before the Court within 15 days after receiving the judgement and pay a fee of 100 yuan to appeal the case.
