Beijing Intellectual Property Court
administrative judgment
(2019)3032
Guangdong Aiche Xiaowu E-commerce Technology co., LTD filed an cancellation against the mark with No.12022540 filed by Shenzhen Aiche House Automotive Supplies co. LTD based on non-use for three years on November 22, 2017. And Shenzhen Aiche House Automotive Supplies co. LTD provided use evidences of the proposed mark between November 23, 2014 and November 22, 2017( the designated period). But the National Intellectual Property Administration of the People’s Republic of China (CNIPA) treated the use evidences as invalid for they cannot form a complete evidence chain to prove the proposed mark is used openly, authentically and legally during the designated period. So the proposed mark was revoked.
Dissatisfied with the decision, Shenzhen Aiche House （the plaintiff） filed a lawsuit against the CNIPA （the defendant）before Beijing Intellectual Property Court.
Shenzhen Aiche House Automotive Supplies co. LTD: the use evidences provided can prove consecutive use and promotion of the proposed mark. Therefore, the proposed mark should be maintained. So they kindly request the Court to repeal the decision made by CNIPA and order it to make a new decision.
In the opinion of the court, the focus of this case is whether the proposed trademark has been used for real, lawful and effective commercial purposes on the designated services such as ”advertising ;sales promotion for others” during the designated period. Such use includes the use of the trademark for commodities, packaging or containers of commodities and documents of commodity trading, or for advertising, exhibitions and other commercial activities
In this case, from the evidences provided by the plaintiff such as the agent contract, purchase contract,exhibition contract and invoices, we can conclude that the plaintiff has used the proposed mark on its designated services including “advertising ;sales promotion for others” during the designated period and there are corresponding evidences to support it. So the Court held that the proposed mark was used in a real, lawful and effective way on the designated services including “advertising ;sales promotion for others” .
In conclusion, the main evidence for the defendant to make the decision to be sued is insufficient, and the court annuls it according to law.And the plaintiff's claim has factual and legal basis and shall be supported. According to the provisions of Paragraph 1 Article 70 of Administrative Litigation Law, the Court decides that:
- Cancel the the revocation decision of the original TRAB on the proposed mark “爱车屋 icaroom and device” with No.12022540
2.The CNIPA makes a new decision on the revocation review application of the plaintiff, Shenzhen Aiche House for the trademark“爱车屋 icaroom and device” .
The case acceptance fee is 100 yuan, which should be paid by the plaintiff Shenzhen Aiche House. (paid)
The presiding judge：Zhang Jianqiang
People’s juror: Li Shuyun
People’s juror: Guo Weihong
June 26, 2019
