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Fineland IP Firm agent "Haojianghong and Tu"trademark refusal to review the administrative dispute case

The case of the plaintiff, Fufeng and the State Intellectual Property Office, on the administrative dispute concerning the “Semi-Hong Kong and Map” trademark (referred to as the application for trademark) No. 26238890, was publicly heard by the Beijing Intellectual Property Court on March 27, 2019, and the judgment was revoked. The commercial commentary [2019] No. 1517 of the defendant made a decision on the “Rejection of the “Lanjianghong and Tu” trademark refusal of the 26238890” and made a new decision.


[Trademark Information]

Application for trademark:

Approved products: sugar, honey, rice, pastries, vinegar, soy sauce, sorbet, tea, tea drink, bread

A similar group: 3002-3006; 3008; 3013; 3015

Citation of the trademark one:

Approved products: juice, water (beverage), mineral water (beverage), mineral water, juice drink (beverage), fruit drink (non-alcoholic), honey-based non-alcoholic beverage, pure water (beverage), plant Beverage, ginger drink

A similar group: 3202

Citation trademark three:

Approved products: rice, flour products, pastries, instant rice, cereal-based snacks, starchy foods, cocoa products, candy, ice cream, condiments

A similar group: 3001; 3004; 3006-3010; 3032-3013; 3016

Citation trademark four:

Approved use of goods: tea, flowers or leaves used as tea substitutes, honey, rock candy bird's nest, songs, edible fragrance, Cordyceps chicken, propolis

A similar group: 3002; 3005; 3017-3018

[Introduction to the case]

The application for the trademark was filed by the plaintiff on September 5, 2017, and was rejected by the Trademark Office. The plaintiff filed a review application with the Trademark Review and Adjudication Board within the statutory time limit. The Trademark Review and Adjudication Board made a business evaluation letter [2019] No. 1517, “No. 26238890 "Hao Jianghong and Tu" trademark refusal to review the decision" (referred to as "the decision to be sued"). The plaintiff refused to accept this decision and filed an administrative lawsuit with the Beijing Intellectual Property Court. The court found that the decision to revoke the decision and to make a new decision was made. Our company's lawyers and clients (the plaintiff) won the first trial of the case.

【Court decision】

Article 30 of the Trademark Law stipulates that: Where a trademark applied for registration is the same or similar to a trademark already registered or pre-certified by another person on the same commodity or similar commodity, the Trademark Office rejects the application and does not make an announcement.

The purpose of the trademark law is to protect the interests of consumers, producers, and operators. The relevant public distinguishes the source of goods through trademarks. Traders, commodities, and producers and operators of goods have a corresponding relationship. If the trademark registrant no longer exists, the function of the trademark to distinguish the source of the goods is also lost. In the case of a trademark that has lost its trademark due to the absence of the trademark owner, it has not been able to prevent the registration of the applied trademark as a prior trademark. In this case, Harbin Ruisford Trading Co., Ltd., the third owner of the cited trademark, was approved by the industrial and commercial administration authority on July 28, 2015, and its qualification as a legal subject has been lost. And the trademark file of the trademark III indicates that the right holder has not transferred the exclusive right of the trademark before the cancellation, and there is no evidence to prove that there is a subject of rights and obligations, that is, the current cited trademark has no rights. Therefore, although the cited trademark III is a prior effective trademark, it has not entered the circulation field because its rights holder has been cancelled and has no rights and obligations to bear the subject. Therefore, the relevant public will not misunderstand the application trademark and the cited trademark. Therefore, the obstacles to the right to apply for trademark registration on some designated commodities have changed. The final court decided to revoke the commercial evaluation of the defendant [2019] No. 1517, "No. 26238890 "Semi-Hong Kong and Map" trademark rejection review decision And make a decision again.