The applicant of a company in the United States (the original opponent) because of the "FRUIT and graphics" trademark (hereinafter referred to as the opposed trademark) objection case, not satisfied with the Trademark Office objection ruling, to the business judge to apply for review.
THE opposition ruling OF the Trademark Office held that the applicant's trademark "FRUIT OF THE LOOM" (hereinafter referred to as the cited trademark) can be translated as "FRUIT of the loom" or "product of the loom", and the main meaning of the contested trademark "fruit" is "fruit", and the meanings of the two are different; The text of the quoted trademark uses simple printing, and the challenged trademark has a unique shape, and the "F" and "R" are greatly deformed, which is completely different from the quoted trademark. The fruit graphics of the disputed trademark also have distinct characteristics, which will not cause confusion at all, so the two trademarks do not constitute similar trademarks, and will not cause consumers to misrecognize and purchase. Therefore, the applicant's objection is not established.
The applicant stated in the re-examination that the applicant was established in 1938. Since 1851, THE applicant and its predecessors have used the words "FRUIT OF THE LOOM" in combination with various graphics. THE trademark "FRUIT OF THE LOOM" was first used on clothing and related goods in the United States on November 25, 1891, and was registered in the United States in 1871. "FRUIT OF THE LOOM" is a well-known trademark and trade name used by the applicant in the garment industry for a long time. (2) THE opposed trademark is confusingly similar to the applicant's well-known trademark "FRUIT OF THE LOOM". THE respondent, as a peer OF the applicant, could not have been unaware that the applicant's famous "FRUIT OF THE LOOM" trademark, which applied for registration as a domestic enterprise against the trademark, was a malicious plagiarism and imitation, and the application for registration of the challenged trademark should not be approved.
The respondent, a company in Tianjin, responded that fruit is a common term, not the original creation of the applicant. The meanings of the two trademarks are very different, and there is no confusion. The main meaning of "fruit" is fruit, plant fruit, the applicant's trademark meaning is "the product of the loom", the applicant said its trademark meaning is "the fruit of the loom", obviously very far-fetched. The cited trademark has direct description and is a trademark with poor significance, while the opposed trademark has no direct relationship with the product. Third, the appearance of the two trademarks is very different, and the pronunciation is obviously different.
The business judge found out after hearing, 1, the opposed trademark is the respondent filed an application for registration with the Trademark Office on September 18, 1994, and designated the use of goods for Class 25 clothing.
2, THE applicant in July 13, 1979 to China Trademark Office for the registration OF "FRUIT OF THE LOOM and graphics" trademark, May 15, 1981 by the trademark Office approved registration, registration number 146663, the designated use of goods for the 25th class of clothing.
3, THE applicant in May 20, 1994 to China Trademark Office for the registration OF "FRUIT OF THE LOOM" trademark, April 14, 1996 approved by the trademark Office registration number 831599, the designated use of goods for the 25th class of shirts, etc.
Review Comments:
THE focus OF this case is whether the respondent's application for registration of the challenged trademark infringes the applicant's rights to the trademark and trade name of "FRUIT OF THE LOOM".
Whether the opposed trademark and the applicant's trademark are similar trademarks. THE opposed trademark is "FRUIT and graphics", and its form OF expression has certain originality. Compared with THE applicant's "FRUIT OF THE LOOM and Graphics" trademark and "FRUIT OF THE LOOM" trademark, there are obvious differences between the two trademarks in terms of text meaning, pronunciation, font and overall appearance. It does not belong to similar trademarks, and is used on the same or similar goods respectively, which will not cause consumers to confuse and misidentify the source of the goods.
THE applicant claims that its trademark "FRUIT OF THE LOOM and Graphics" is well-known at home and abroad, but most OF the evidence submitted is the use and publicity of the trademark "FRUIT OF THE LOOM and graphics" in foreign countries, which cannot prove that its trademark has been widely known by the relevant public in China. Moreover, the opposed trademark and the applicant's trademark do not belong to the similar trademark, "FRUIT" is a common word in English, the word is not original by the applicant, therefore, can not be identified as the opposed trademark is the applicant's trademark plagiarism, imitation. For THE same reason, although the applicant's trade name is "FRUIT OF THE LOOM", it cannot be prohibited to apply for the registration of the common English word "FRUIT" as a trademark without causing confusion to consumers.
The Applicant claims that the respondent acted in clear bad faith, but the evidence submitted does not support its claim. From the facts of this case, the respondent applied for the trademark registration of the common word "FRUIT" after an original design, and its behavior is not improper.
The verdict:
THE business judges held that the opposed trademark did not damage the applicant's rights in respect OF its "FRUIT OF THE LOOM" trademark and trade name, and the reasons for the applicant's objection review were not established. In accordance with the provisions of Article 33 and Article 34 of the Trademark Law, the commercial judges ruled that No. 865737 "FRUIT and Graphics" trademark be approved for registration.
Reviews:
This case mainly involves three issues, one is the judgment of trademark similarity, the other is the evidence to identify well-known trademarks, and the third is the conditions of the prior trade name right against the later trademark.
On the first question. Although the challenged trademark and the applicant's trademark part of the same text, but as the Trademark Office opposition ruling pointed out, "the challenged trademark has a unique shape," F "and" R "are greatly deformed, and the cited trademark is completely different. There is no confusion at all." In fact, if not prompted, it is difficult for the average person to read the initial "F" in the contested trademark. Therefore, the jury concluded that the trademarks of both parties are not similar trademarks. Through this case, we can see that among the three elements of sound, form and meaning of trademarks, "form" (that is, expression form and visual effect) plays an important role in the judgment of trademark significance or approximation. If the original design has made a significant change in the expression of the text, thus increasing the distinction between the trademarks, then even if the composition of the text is the same, it can not be judged as similar trademarks. On the contrary, if different words are combined with special fonts and arrangements, it is easy to cause confusion and may be identified as similar trademarks. In another case, the parties arranged the words "Shaodazhuang" vertically, and the result was similar to the "Jianzhuang" trademark that was previously registered on liquor products and was rejected.
On your second question. THE applicant claims that the trademark "FRUIT OF THE LOOM" is a well-known trademark, but the evidence submitted is not sufficient. Among them, the registration certificate of the applicant's trademark in China and the United States can only explain the ownership of its trademark rights, but can not reflect the actual use of the situation; The list of countries licensed to produce products with the applicant's trademark, the list of countries in which the applicant's products are sold, the product sales catalogue, the list of countries in which the trademark is registered, and the advertising and publicity cost table are made unilaterally by the applicant, lacking credibility and weak proof. In addition, the number of advertising materials submitted by the applicant is limited, and it is basically formed abroad, which is difficult to be understood by Chinese consumers. Therefore, it cannot be concluded that the applicant's trademark has been widely known by the relevant public in China and belongs to the well-known trademark stipulated in Article 13 of the Trademark Law. In short, the parties request the identification of well-known trademarks, to reflect the "quality" of trademark awareness through the accumulation of the "quantity" of the use of the trademark and promotional materials, if you can not submit sufficient evidence, in general, its claim is difficult to be supported.
On your third question. How to solve the conflict between trade name right and trademark right is a complicated problem. At present, the academic circle has carried out a certain theoretical discussion, but no law has made a clear provision on "trade name right". Relatively speaking, trade name right is a relatively weak right. In the "trademark trial Standards" jointly published by the commercial judges and the Trademark Office, the conditions for the prior trade name right to oppose the later trademark are: 1. The registration and use time of the trade name should be earlier than the registration application date of the contested trademark; 2. The firm has a certain popularity among the relevant Chinese public; 3. The registration and use of contested trademarks can easily lead to confusion among the relevant public, which may cause damage to the interests of the owner of the prior trade name. Specifically, the following factors should be taken into account: (1) the originality of the leading firm. If the words used by a trade are not common words, but imaginary words with no exact meaning, it can be regarded as original. (2) The popularity of the leading firm. To determine whether the leading firm has a reputation among the relevant public, it should be examined from the registration time of the firm, the time span of using the firm to engage in business activities, geographical scope, business performance, advertising and other aspects. (3) The goods/services designated for use in the trademark dispute and the goods/services provided by the owner of the trade name shall in principle be identical or similar. Generally speaking, a basic starting point for dealing with the conflict between trade name right and trademark right is to prevent the goodwill of the prior right holder from being improperly borrowed or damaged, so as to maintain the market order of fair competition and safeguard the interests of consumers. The well-known trademark of others is registered as a trade name, and the use and publicity of "free riding", such as the "Huadu Machine" incident in previous years, is not allowed by law. It is also not permitted by law for a trade name that is or should be known to have been used or registered by others and has established a market reputation to apply for registration as a trademark in a competitive class of goods or services. In this case, THE applicant's trademark and trade name OF "FRUIT OF THE LOOM" are not well known in China, and the objecting trademark word "FRUIT" (that is, fruit) is a common English word, and has undergone a more original design, which is not a imitation of the applicant's trademark. The registration and use of the opposed trademark will not cause confusion and misrecognition by the relevant Chinese public, and there is no problem of borrowing or damaging the applicant's goodwill, which does not constitute an infringement of the applicant's right to trade name
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