Applied trademark: Trademark No. 2340502 " " is approved to be used in class 31: stall food for animals; eggs for hatching, fertilized; fruit, fresh; vegetables, fresh; undressed timber; cereal seeds, unprocessed; plants; poultry, live; grains [cereals]; bird, live.
Cited trademark 1: Trademark No.7807826 " " is approved to be used in class 31: menagerie animals; animals on display; live animals; eggs for hatching, fertilized; breeding poultry; poultry, live.
Cited trademark 2: Trademark No.8855036 "" is approved to be used in class 31: trees; seedlings; poultry, live; breeding poultry; eggs for hatching, fertilized; fruit, fresh; vegetables, fresh; edible flowers, fresh; pure culture;
Cited trademark 3:Trademark No.9610466" " is approved to be used in class 31: live animals; breeding poultry; poultry, live; grains[cereals]; trees; fruit, fresh; vegetables, fresh; plant seeds; forage; animal litter.
Jiangsu Tianyi Pigeon Industry Co.,Ltd. applied for registration of graphic trademark No. 23405025 on April 5, 2017. After the examination, the CNIPA rejected the application for the trademark because it is similar to the three cited trademarks, and then Jiangsu Tianyi Pigeon Industry Co.,Ltd. filed a request for review of the refusal. The CNIPA made a decision on the review of graphic trademark No. 23405025 on August 27, 2018, and rejected the application for the trademark.
Jiangsu Tianyi Pigeon Industry Co.,Ltd. was not satisfied and filed an administrative lawsuit with Beijing intellectual property Court as a plaintiff within the legal time limit. Our firm Gaowo participated in the litigation as the agent of applicant Jiangsu Tianyi Pigeon Industry Co.,Ltd. During the trial, our agent conducted a detailed comparison between the applied trademark and the three cited trademarks in terms of composition elements, overall appearance, visual effects, calls, etc., and explained that the differences in logos and trademark coexistence will not lead to consumers confusion and misidentification. The court of first instance finally supported the plaintiff's claim and determined that the applied trademark and the three cited trademarks did not constitute similar trademarks. Later, the CNIPA refused to accept the judgment of the first instance and filed an appeal with the Beijing Higher People's Court. After trial, the court of second instance finally rejected the appellant's appeal request and upheld the original judgment.
The focus of the dispute in this case is whether the application for registration of the trademark violated Article 30 of the Trademark Law. Article 30 of the Trademark Law provides: Where a trademark registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark. Trademark similarity refers to the font, pronunciation, meaning or graphic composition and color of the trademark, or the overall structure of the combination of various elements is similar, or its three-dimensional shape and color combination is similar.
In this case, the applied trademark is a graphic trademark, the overall outline of the figure is oval, and the oval interior is outlined with simple lines.The cited trademark 1 is a combination trademark of graphics and text, The overall outline of the trademark is oval. The oval contains the pigeon figure, the Chinese characters "玉鸽" and the pinyin "YUGE". The Chinese characters "玉鸽" are located in the middle with a larger font, which is the identification part of the trademark. The cited trademark 2 is a combination trademark of graphics and text, consisting of the white pigeon graphic, the sun graphic, the Chinese characters "元农" and the pinyin "YUANNONG". The entire trademark is based on a black square, and the Chinese characters "元农" are the identification part of the trademark. The cited trademark 3 is a combination trademark of graphics and text, consisting of the white pigeon, the Chinese characters "秋浦王" and the pinyin "QIUPUWANG". The Chinese characters "秋浦王" are the identification part of the trademark. The disputed trademark is a purely graphic trademark, and the meaning of the graphic outlined by the lines is relatively abstract. After general observation, the relevant public may recognize it as a kind of bird, but it is difficult to recognize it as a dove. The three cited trademarks are all combination trademarks of graphics and text. Relatively speaking, Chinese characters are the identification part of their respective readable parts. Among them, the Chinese characters in cited trademarks 2 and 3 are obviously different from pigeons in pronunciation and meaning, and the graphics are also quite different from the applied trademark, so they do not constitute similar trademarks. The Chinese characters part of the cited trademark 1 is "玉鸽", and they occupy a relatively large proportion in the trademark, while the graphic part occupies a small proportion, which can also be distinguished from the applied trademark as a whole. So the coexistence of the applied trademark and the three cited trademarks on the same or similar goods will not cause confusion among the relevant public, will not misidentify the origin of the goods, and do not constitute similar trademarks used on the same or similar goods.
Therefore, when determining whether the trademarks are similar, the comparison principle of the combination of the overall comparison and the comparison of the main parts should be followed. Not only to compare the significant identification part of the trademark, but also to analyze the overall composition of the trademark. at the same time, it should also be judged by whether it leads to confusion and misunderstanding of the relevant public. Generally speaking, when applying articles 30 and 31 of the Trademark Law, factors such as the similarity of the trademark, the similarity of the goods, the significance and popularity of the cited trademark, the attention of the relevant public and the subjective intention of the trademark applicant should be taken into account, as well as the interaction between the above factors, whether it is easy to cause confusion and misunderstanding of the relevant public standards.