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The trademark application violates Article 10(i)(ⅷ) of the Trademark Law

author:CHISPO

time:2019-06-24

 

-- Introduction of the Case
The applicant has filed an application concerning the trademark "(Chinese characters)" (hereinafter referred to as "the application trademark") to the China National Intellectual Property Administration (CNIPA) on December 5, 2016, the application number is 22143226, which has been designated on the services of “boarding for animals; rental of tents; accommodation bureau services (hotels, boarding houses); restaurant services; hotel services; holiday camp services (lodging); bar services; providing campground facilities; retirement home services; day-nursery (crèche) services" in Int. Class 43.
Upon examination, the CNIPA held that the characters which contained in the filing mark are likely to cause unhealthy effects, thus are prohibited to be used as trademark. The application of the filing mark has been rejected according to Article 10 (i)(ⅷ), 30 of the Trademark Law. The applicant is entitled to file an appeal against the refusal to the CNIPA, if it is dissatisfied with the refusal decision.


-- Gist of the Judgment
The filing trademark does not violate Article 10(i)(ⅷ) of the Trademark Law, the application in question that was designated on the services has been approved for registration.


--Lawyer's Comments
This case is a typical case in which a certain political term formed in a specific historical period in our country was used as a trademark, and has not been recognized as having unhealthy effects, and has been approved for registration.
Article 10(1)(8) of the "Trademark Examination and Trial Standards" interprets that the term of "other unhealthy effects" means, the words, graphics or other elements of the trademark which has negative effect, and bad influence on our politics, economy, culture, religion, nation, public social interest and social public order.
As for the words that were formed in a specific historical period and have a certain political color, if it can be proved that they will not cause unhealthy effects, it is not absolutely impossible to register as a trademark. The author hereon analyzes the registrability of this kind of trademarks in respect of the sign, the applicant and the designated goods:
1. The sign itself has a positive impact;
2. The applicant has the legitimate reasons;
3. There will be no negative or negative effects on the use of the designated goods.