Trademark objection case: Astro Boy graphics trademark objection case

Copyright, also known as copyright, refers to the rights enjoyed by copyright owners to works, according to the automatic creation of Copyrights, copyright is generated at the time of creation of the work, without any formalities. This is the principle upheld by most States and affirmed by the Berne Convention. Article 3 of the Berne Convention provides that authors who are nationals of a Member State of the Union, regardless of whether their works have been published or not, shall enjoy the protection afforded by this Convention. Article 5 also provides that the rights referred to in this Convention may be enjoyed and exercised without any formality. The same provisions are adopted in the Copyright Law of our country. Article 2 (3) of the Copyright Law of our country provides that works of Chinese citizens, legal persons or entities without legal personality, whether published or not, enjoy copyright in accordance with this Law. Because our country implements the principle of automatic protection of copyright, the creators of this work should protect their rights according to law if they can prove that they are the real creators even without going through any registration formalities. Article 25 of the Rules for the Implementation of the Trademark Law of China on the protection of prior rights, including the protection of copyright, that is, the parties without permission to trademark the creation of others, is contrary to the principle of protection of copyright and even trademark rights, which is not allowed by law. The image of "Astro Boy" in this case can be widely known. It is the protagonist image of Japanese cartoons, and its copyright ownership is clear. The registration of the opponent is obviously an unfair competition act that infringes the legal prior rights of the opponent, and is prohibited by the Trademark Law and the Implementing Rules of the Trademark Law.

Basic information of the case:

On February 9, 1992, a factory in Jiangsu Province applied to the Trademark Office of the State Administration for Industry and Commerce to register the Astro Boy graphic trademark on Category 30 candy, cocoa and other commodities (see figure). After examination by the Trademark Office, the Astro Boy graphic trademark was preliminarily approved, and the preliminary approval announcement was published in the 377 issue of the Trademark Announcement. During the trademark objection period, the Patent and Trademark Office of the China Council for the Promotion of International Trade, acting for a Japanese company, raised an objection to the graphic trademark, and the opponent answered on schedule.

Objectionable trademark:

Reasons for the objection:

The challenged trademark infringes its copyright, and the company's "Astro Boy" animated characters are well known in many countries, including China, and are entitled to copyright protection under the Berne Convention. Reasons for the respondent's defence:

Its trademark is designed by itself, and the opponent's trademark has not applied for registration in our country, so the trademark should be approved for registration.

Dissenting ruling:

According to the facts and reasons stated by the parties and the evidence provided, the trademark Office made a ruling. The trademark office said that although the dissident's "Astro Boy" animated image was not registered in China, the animated story, designed by the company in the 1950s, has been known to consumers since it was shown in China. The small astronaut in the trademark of the opponent is similar to the "A child protection" in the cartoon no matter from the image and action. The country has acceded to the Berne Convention for the protection of copyright, and the legitimate prior copyright of others should be protected. The objection raised by the dissenter shall stand. According to Article 19 of the Trademark Law, the fourth Astro Boy graphic trademark with No. 4 after preliminary examination shall not be approved for registration.