Administrative judgment

of Beijing higher people's court

                                                       (2019)2835

Dissatisfied with the judgment of trademark application rejection of the administrative dispute made by Beijing Intellectual Property Court , the appellant Aoankang company filed an appeal to Beijing higher people's court . After accepting the case on April 1, 2019, the court formed a collegial panel to conduct the trial according to law. And the case is now closed.

The proposed mark:;  cited mark 1:； cited mark 2：

Beijing Intellectual Property Court :in view of that Aoankang company clearly stated that the designated products by the mark with No. 20447582(the proposed mark) and the designated products by the mark with No.8775459(cited mark 1) and the mark with No.18750003A (cited mark 2) constitute similar products and this shall be confirmed after examination. And the proposed mark and cited mark 1 are similar trademarks in respect of similar products. While cited mark 2 is a combination mark of words and device and consists of Chinese characters ”乡村未来”, English words ”VILLAGE FUTURE” and device. And it is the Chinese characters ”乡村未来” that can be pronounced and distinguished by Chinese public easily. Although the device part of cited mark 2 also has three bar patterns, it is different from the device contained in the proposed mark to some extent. So the proposed mark is different from cited mark 2 in composition and overall appearance and the public can distinguish it from the cited marks with general attention. So the proposed mark and the cited mark 2 are not similar trademarks in respect of similar products, based on which the sued decision is made wrongly and it should be corrected. Whether trademarks are similar or not is based on whether the consumers would be misled about goods origin or not. And the reasons of Aoankang company cannot deny that the public will be misled if the proposed mark and cited mark 1 are used on shoes, socks and hats, etc. In conclusion, the sued decision is well-founded and its examination process is legal , and though the applied law is wrong , its conclusion is right. So the claims of Aoankang company shall not be supported. According to Article 69 of Administrative Litigation Law , the claims of Aoankang company shall be rejected.

Dissatisfied with the judgment made by Beijing Intellectual Property Court , the appellant Aoankang company filed an appeal to Beijing higher people's court and kindly requested the Court to ask the CNIPA to make a new decision. And the main appeal reasons are:1.they request the Court to suspend the examination of this case for cited mark 1 is under cancellation; 2.the proposed mark is different from cited mark 1 in overall appearance, so they are not similar trademarks.3.the proposed mark has obtained popularity which is high enough to be distinguished from cited mark1.

Additionally, after checking, the Trademark Office made a decision on April 20, 2019 and canceled the registration of cited mark 1 on all the products in Class 25.

Our Court thinks that:because the registration of cited mark 1 on all the products in class 25 has been canceled, cited mark 1 will no longer be an obstacle for the registration of the proposed mark. So the facts based on which whether the proposed mark should be approved for registration or not have changed, so the Court shall cancel the sued decision made by Beijing Intellectual Property Court.