Review of Trademark Refusal concerning "紫光国微"
Heard by: Beijing High People's Court
Outcome of Trial: Revoke decisions on refusal review and the first-instance ruling
Tsinghua Unigroup Co., Ltd. (hereinafter referred to as "Tsinghua Unigroup") applied for the trademark of"紫光国微" in the class 38, 12, 42, and 35 respectively on May 14, 2018. The Trademark Office of the China National Intellectual Property Administration(CNIPA) and the Trademark Review and Adjudication Board of CNIPA rejected the registration application of the above-mentioned trademarks on the grounds that the above-mentioned trademarks containing "国微" for designated goods and services could easily cause misunderstanding in the quality of goods and services to customers, which violated Item 7, Paragraph 1, Article 10 of the Trademark Law. Attorneys from Beijing Sanyou were entrusted to represent Tsinghua Unigroup in the first and the second instances of the administrative litigation of the trademark series of "紫光国微" refusals.
The court of the first instance held that: the disputed trademark was the Chinese characters of "紫光国微", among which, "国徽" could easily mislead the public to believe that the designated goods and services may have a connection with the nation, which could easily lead to misunderstanding and be deceptive, constituting the situation stipulated in Item 7, Paragraph 1, Article 10 of the Trademark Law.
Sanyou attorneys represented Tsinghua Unigroup in the appeal. After the trial, the court of the second instance held that: the disputed trademark was composed of the Chinese characters of "紫光国微", although it contained the character of "国", it was not the first character of the disputed trademark. Instead, it was contained in the four characters of "紫光国微". On the whole, the disputed trademark was not easy to remind people of the national emblem nor other meanings related to the national or the highest level, so it was not sufficient to make the public misunderstand the characteristics such as content, quality, and the source of their designated service, and then to further make the wrong decision on consumption. Therefore, the disputed trademark was not deceptive and did not constitute a situation where it could not be used as a trademark as stipulated in Item 7, Paragraph 1, Article 10 of the 2014 Trademark Law.
This case is an important reference in how to apply the principle of consistency of trademark examination, case-by-case examination, and understand the "deceptive" clauses in Item 7, Paragraph 1, Article 10, of the Trademark Law, especially in the examination of trademarks with the character of "国". The attorneys argued that the disputed trademark should be registered on the following grounds. Firstly, the applicant's application for the disputed trademark is subjectively justified, and the disputed trademark logo does not have a fixed meaning, which would not result in misunderstanding among consumers; secondly, a large number of trademarks with the characters of "国" and "国微" have already been registered, thus the disputed trademark in this case, shall be approved for registration; thirdly, this case involves the trademark registration on absolute grounds, so the principle of case-by-case examination shall be strictly applied. To ensure the consistency between "case-by-case examination" and examination criteria, attention should be paid to distinguish the difference between the application of relative grounds and absolute grounds. As for the use of "prohibition" and "prohibition of registration" on absolute grounds, expected judicial conclusions by the public should be ensured to be stable, and the discretionary scale should not be arbitrarily changed to affect the stability of law application.
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