Case Summary：

In 2015, our client Ping-An-Ye Group filed with the Trademark Office for reexamination of revoking No. 3382610 “賽林娜” trademark (hereinafter referred to as the “disputed trademark”) due to three consecutive years of non-use, which was supported by the then Trademark Review and Adjudication Board (TRAB) with the decision to revoke the disputed trademark (hereinafter referred to as the “disputed decision”). In disagreement with the decision, the owner of the disputed trademark initiated a litigation with the Beijing IP Court and supplemented relevant evidence to prove the existence and use of the disputed trademark. After hearing, the Beijing IP Court held that the evidence submitted can prove that the disputed trademark has been applied in authentic and effective commercial use within the specified period and supported the claim made by the plaintiff. Our client dissatisfied with the judgment of first-instance and appealed to the Beijing Higher People's Court. After trial, the court of second-instance issued the judgement to maintain that of first-instance. In refusal to the above result, our client applied to the Supreme People's Court for a retrial.

At the retrial, Unitalen lawyers put emphasis on the debate of the core of such trademark revocation disputes: in examination of whether the evidence can prove that the disputed trademark has been continuously used in the designated goods and services during the specified period, it shall take into consideration of the purpose of use (good faith or malicious), the use itself (authentic use, symbolic use or even false use), and the consequences of use (causing differentiation or confusion in the market) as a whole. The illegal use that is only symbolic and occasional does not conform to the legislative purpose of the provisions in Item 4 of Article 44 of the Trademark Law of 2001 concerning trademark use. Our lawyers also provided analysis on the evidence submitted in the trials of first instance and second instance and presented defense reasons against one by one.

After retrial, the Supreme People’s Court issued the ruling that adopted the above-mentioned propositions made by our lawyers and supported our client’s retrial appeal, that is, the judgement of first and second instance were revoked. And the disputed decision was upheld.

Typical Significance:

One of the main considerations in examination and determination of the evidence of trademark use adopted by the Supreme People’s Court is if the trademark owner uses own trademark and other’s trademark concurrently with intention to obscure the the independence of or implies specific relevance of the two trademarks and thus take advantage of the publicity of other’s trademark, then it’s not a use that conforms to the provisions of the Trademark Law. If the use of a trademark is likely to cause the relevant public confuse or misidentify the source of the disputed trademark, and if the use of a trademark actively seeks the result of mark confusion, it will not produce a statutory trademark use effect.

This case thus provides typical significance for the essentials of trademark use for similar cases; also it provides reference in respective of litigation strategy in how to actively pursue the existing judicial remedy procedures for appeals for similar cases.