The applicant, Pittori Zambello, was unwilling to accept the refused trademark decision issued by CNIPA, and entr usted Beijing Fineland IP Firm to file request for review of refused trademark with CNIPA, and finally succeeded in safeguarding its rights.
Briefly Description of the Case
The comparison of the marks is as below:
1. The industry attributes of the applicant in this case and the cited trademark’s right holder are completely different. The applicant is mainly engaged in the garment industry, while the cited trademark’s right holder is mainly engaged in the metal casting industry. In addition, the company operated by the applicant is a German enterprise, and the cited trademark’s right holder is an enterprise in Xuancheng City, Anhui Province, which belongs to a completely different region. The applied trademark and the cited trademark are registered in class 35. In actual usage, they are bound to be used in combination with their main industries respectively. It is extremely unlikely that the relevant public will have access to the two trademarks at the same time, which will not cause confusion and false recognition to consumers.
2. There are obvious differences between the applied trademark and the cited trademark in terms of appearance, representation meaning, etc., which will not lead to public confusion and false recognition, and do not constitute a similar trademark.
The applied trademark is composed of English word "MALDIRE" and figure, with rectangle as the peripheral contour, the text is horizontally arranged in line, and the part of the text is held above the figure, which is presented as dancing double snakes. The cite trademark is composed of the Chinese characters "凤形", pinyin "FENGXING" and a figure. The "凤形FENGXING" is arranged in a circular pattern, the "凤形" is arranged in a clockwise pattern, and the "FENGXING" is arranged in a counterclockwise pattern. The figure is presented as a double dragons and an imagistic world map.
The design inspiration of the applied trademark is derived from the main clothing products of the applicant, and "MALDIRE" is a innovative word after combination, generally referring to "clothing for women". The trademark application conveys that the applicant is mainly engaged in the production and sales of female ballet costumes, and the applicant's main products have good slimming effect, which can perfectly show the dancer's figure. The cited trademark "凤形" originates from the business name "凤形" of the cited trademark’s right holder "Anhui Fengxing New Material Technology Co., Ltd.", which has clear directivity. The overall meaning of the cited trademark refers to "Fengxing strives to be a leader in the industry and Fengxing is committed to the enterprise goal of building "凤形" brand into an internationally renowned brand".
In this case, although both the applied trademark and the cited trademark contain figurative parts, the figurative parts only play the role of decoration and background in the trademark, and the significance is weak in the trademark. The word "MALDIRE" is the prominent part of the applied trademark. The words "凤形FENGXING" is a prominent part of the cited trademark. In short, the significant identification part of the applied trademark is obviously different from that of the cited trademark, and the relevant public can distinguish the two trademarks according to their respective significant identification part, which will not lead to public confusion and false recognition at all.
3. Through the applicant's promotion and publicity, the product materials of the applicant's "MALDIRE" brand can be seen in the websites known to Chinese consumers, such as Taobao - Global Shopping, Alibaba -1688, etc., which have achieved good sales performance, held a certain market scale, and enjoyed certain popularity and influence. In the course of long-term use of the applied trademark, the applicant has made the salient features of the applied trademark more prominent and has a fairly high popularity among consumers. The applied trademark shall be preliminarily approved and published.
In accordance with the provisions of Article 28 of the Trademark Law of the People's Republic of China, CNIPA has decided as follows: The applied trademark’s registration applilcation on review service is preliminarily approved.