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Fang Tao intellectual property agency dihon Pharmaceutical Group objection "Shunfeng Kangwang" trademark administrative litigation in favor of second instance

Writer:高天乐Date:2017年7月21日 11:50

Brief introduction:


Dihon Pharmaceutical Group Limited by Share Ltd No. 1130744th entitled "Kangwang" cited trademark, approved for goods of Chinese medicine and Western medicine, Chinese medicine, western medicine, November 4, 1996 November 28, 1997 for approval, after two times of renewal, valid until November 27, 2017. The trademark in question "Shunfeng Kangwang" proposed by Huarun Guangdong Shunfeng Pharmaceutical Co. Ltd. in March 12, 2007 for designated goods for human use, injection, tablet, agent, tincture, ointment, Chinese patent medicine, oil, suppository, pharmaceutical preparations. Yunnan hung Pharmaceutical Group in the announcement period, the objection to the application for the trademark, without the support of the Trademark Office, but also submitted a review of objection, the Trademark Review and Adjudication Board also made a decision to approve the registration.


Since then, fangtao to intellectual property entrusted to the administrative proceedings to the Beijing first intermediate people's court, the Beijing intermediate people's court after the hearing upheld the judges ruled that dihon pharmaceutical group immediately appealed to the Supreme People's Court of Beijing, in the second instance, the final decision support dihon Pharmaceutical Group, a no trial revocation and judges ruled. Mr. Fang Tao, Minister of intellectual property law, acted as an agent and participated in the review and litigation.


Main reason:
 

First of all, when the defendant's ruling was made in 2001, the trademark law was implemented, so the case was based on the old law and specifically the twenty-eighth article of the act.


Secondly, in addition to being on the disputed trademark and the cited trademark outside, Huarun proposed Shunfeng company trademark reputation Extension Rules, and then shake the dihon pharmaceutical group advocates the trademark in question is easy to cause the confusion of the relevant public conclusion, so as to obtain the registration of a trademark is filed legitimacy.
 

"That is, the company claims based trademark of Huarun No. 1002785th" Shunfeng Kangwang applied in October 25, 1995, May 14, 1997, to be registered as a single commodity goods approved by Compound Ketoconazole Cream. The company believes that Huarun based trademark and the trademark in question mark the same commodity similar, and should be regarded as a logical extension of registration. Moreover, the coexistence of the basic trademark and the quoted trademark has existed for many years. Both the disputed trademark and the quoted trademark coexist, and the same result will not be confused in the market, nor does it constitute the term referred to in the twenty-eighth article of the old law.
 

Finally, Fang Tao's view of intellectual property rights does not satisfy the application of the continuation rule of trademark reputation. First, the trademark in question is not put into use, and only a commodity based trademark approved, although its use in marketing and advertising, but only a fixed business reputation on the Compound Ketoconazole Cream, and transfer to the people who can't use the goods, through a similar analysis method on paper, it does not contribute to the gain people use drugs. Second, to clear evidence shows that the basis of the trademark in the use process, highlights the Montevideo trademarks, therefore dihon Pharmaceutical Group also specialized in the same media issued a lawyer's statement to clarify the facts and to remind consumers to avoid the mistake, this section explains the possibility of existence of completely misleading. Third, the cited trademark since the approval of the registration date, in the civil trial level and different administrative cases, has repeatedly been identified as well-known trademarks, most of them were protected across categories, high visibility, business reputation is significant, so in this case should be protected and the corresponding degree, enough to stop cut off the continuation effect based trademark. Fourth, the company name Huarun authorized trademark more resource space is large, and the urgency of the continuation of the foundation of the reputation of the trademark is relatively low, in the case of not giving approval, not to hinder its development, in the approved circumstances, but will confuse the increased consumer search costs negative effect. Fifth, according to the above four points, consumers are more likely to be regarded as a specific trademark objection with dihon Pharmaceutical Group, and caused confusion, challanged cited trademarks and trademarks constitute the same similar trademarks on similar goods, if the registered use will destroy the existing business pattern into dihon pharmaceutical group rights scope, lack of legitimacy.


Thinking in this case:


Similar to the above situation, the Beijing intermediate people's court and the high court of Beijing in a number of trademark cases, given a clear and unified views, such as "rongbaozhai and graphics", "rainbow RAINBOW and figure", "soft", "Li Jinji", "OPPLE", and ", Midea", "FIERCE TIGER and figure", "Daoxiang" etc. the decision together pointed out that different trademark the exclusive right is independent, there is no continuation between the exclusive right, but in the specific case, and the reputation of trademarks can be extended, and as a judge and other factors is not a trademark confusion. But not without justification to break the stability of the market order has been formed. In January this year, the Beijing High Court issued a guide on administrative cases of trademark right authorization, and the third part summarized and stipulated this issue. The trademark is not only simple symbol, in contrast to approximate, in addition to the traditional concept of commodity and symbols, the key is to consider their own capacity of goodwill, the attitude of seeking truth from facts, respect the integrity of labor both sides, as well as the choice of consumers and market.

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