20/03/2017
Congratulations on Gaowo’s Success about Second Instance of Administrative Litigation of Trademark “Xin Yang Dao”
With respect to administrative dispute about review against No.7334787 trademark “Xin Yang Dao” (opposed trademark) of the appellant Inner Mongolia Mengniu Dairy Co., Ltd (the third party in first trial), Trademark Review and Adjudication Board of SAIC (the defendant in first trial) and the appellee Shijiazhuang Yangyang Food Co., Ltd (the accuser in first trial), Beijing First Intermediate People’s Court proceeded a public trial and made a judgment that the ruling shall be revoked and a new ruling of review shall be made. The appellant was dissatisfied with (2014) No.5023 judgment and filed an appeal within legal term. Beijing Higher People’s Court received the case on May 19, 2016 and heard the case. In final, the judgment was made that the appeal shall be rejected and the original judgment shall be maintained.
The opposed trademark
The applicant: Shijiazhuang Yangyang Food Co., Ltd; application number: 7334787; application date: April 17, 2009; specified goods: class 30 “tea, rock candy bird’s nest, porridge, vinegar, condiment, rice crust”.
Court decision
Article 28 in Trademark Law in 2001 regulates that where a trademark, for the registration of which an application is made, that does not conform to the relevant provisions of this Law or that is identical with or similar to the trademark already registered by another person or is given preliminary examination and approval for use on the same kind of goods or similar goods, the Trademark Office shall reject the application and shall not announce that trademark. Similar goods are goods identical in function, usage, sales channel or goods easily lead to confusion for relevant public.
In the case, Mengniu Dairy Co., Ltd cites three prior trademarks. [2014] No.20556 ruling of Trademark Review and Adjudication Board identifies that the opposed trademark is not similar to the first and second citing trademarks, but it is similar to the third trademark, which is revoked in original trial. Evidence of the ruling of Trademark Review and Adjudication Board is changed and maintaining the ruling is unfair to the applicant and does not comply with the property that trademark right is a civil right and the purpose that interests of trademark owner is protected by Trademark Law. In final, the decision was made that the appeal shall be rejected and the original judgment shall be maintained.