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Fang Tao agent sun Su art company dispute, "vegetarian only" trademark administrative litigation won

Writer:高天乐(方韬知识产权高级合伙人、法律部部Date:2017年7月21日 11:46

Brief introduction
Beijing sunshine in art leather production limited liability company (hereinafter referred to as the sun Su Yi company) is the famous handmade leather goods production and sales enterprise, the build in handmade leather shoe, bags and other products, has a high reputation in the market, and gradually opened in the country dozens of stores and franchise stores the "amateur" brand, also has a certain reputation. Zhu Chunmei and its two enterprises have been the "sunshine art" inspection period franchisee, the two sides have had a considerable scale of business. Zhu sold counterfeit "amateur" brand goods, in June 2008 by the Chaoyang industrial and commercial law investigated and dealt with, and the first instance and second instance administrative proceedings to maintain. After the end of the crackdown, sun Su Yi company in August 12, 2008 to apply for registration of our trademark, specified in the 35 class franchise business management and other services, dismissed the substantive examination, first barrier trademark is Zhu in July 24th of the same year for 35 kinds of amateur Su Wei "trademark.


Fang Tao accept the sun soyea intellectual property company commissioned, launched a trademark application, although the review and trial stage of the proceedings is not supported, but continues to appeal to the Beijing high court trial, finally won the second instance judgment, so that the sun was the legitimate rights and interests of the maintenance of art.


Case passed
In the above three procedures for trademark rights, we have four specific reasons, first of all, with 25 registered trademark claims 28 "amateur similar trademark and similar goods and services"; secondly, the 35 kinds of actual use of unregistered trademark claims 15 of the people, "the agent registration"; third, to 35 practical use of unregistered trademark style has certain influence, advocate the 31 half of the sentence "malicious cybersquatting"; finally, in violation of the principle of honesty and credit, the 1 paragraph of Article 41 to seek support.
The judges and court are not recognized on the above four reasons, the Beijing high court is involved in 15 and 31 of the two reasons are given different interpretations, and to support our "malicious cybersquatting" ideas, make two judgment, ruling and revoke the defendant verdict.


Thinking in this case
The key to the case is "malicious cybersquatting" reasons, but must meet the actual use of trademark Suren in 35 kinds of franchise business management services, the brand has a certain influence, Zhu has malicious conditions. And it is precisely how to form a franchise business management services in the use of links, is a multi - understanding of different focus. We believe that the franchise business management services is a way to sell goods or services, not an industry. The documented evidence such as franchise business advertising, franchise agreement in access, unified decoration, business image, the exit clause, local stores photos and outbound documents, all can prove that human trademark in the country for the franchise, and has a certain influence. At the same time, Zhu used to act as an agent for the investigation of "sunshine art", as well as with the identity of the region and the industry operators, and was able to identify his department as "wise" and "preemptive registration".


While the remaining three reasons are not supported, it is not worth noting. As for the 28 reasons of trademark law, the main purpose is to break through the similar angle of the goods and services. After all, the sale of the entity goods under the actual market conditions has the outward expansion of class service. Fifteenth reasons, in addition to practice has identified the agent range "has been more mature, we will also be agents of goods" and "trademark dispute service" category at the same time, should also be included in this article is just so easy to adjust; and 13 paragraph 2 of the well-known trademark terms constitute a conflict. The new needs to be further improved. And the reason for the 41, it is more a declaration, the only clear violation of the principle of good faith to Zhu Zhu, show a clear attitude.


Agency experience
1, the trust of the parties is very critical, the case in the review and the first instance results are not optimistic, the parties are still to our professional recognition, is to make an important foundation for the final effort.


2, we must have a more in-depth understanding of the situation of the parties, accurate grasp of their business operations, and maintain good communication with the parties, the evidence should be detailed and familiar with each link.


3, the timely use of teaching books and other documents on the "similar goods and services differentiation table" in the service of reading, help to understand the daily life of the concept of understanding.
4, in the belief that there are facts and laws based on the premise, even in the passive situation, as an agent should also firm faith.

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