Prohibition clause

In Article 10 of the Trademark Law, annotations are prohibited and prohibited.

Meaningless, meaningless

Article 1 1 of the Trademark Law, which has been used to obtain distinctive features and is easy to identify, may be registered as a trademark. It is a doubt to gain prominence through use, and it is a place with flexibility, operating space and value-added services for customers.

Dynamic evolution of prominence

At the end of last year, I wrote an article "Salience is the Soul of a Trademark" in China Business News. After revision in February this year, it was re-published on the IPRdaily WeChat public platform with the new title "Dynamic Evolution Analysis of Trademark Salience".

Last year, I also made a brief interpretation of several news events about trademark distinctiveness in China Business News. For example, the "warm baby" trademark and the "UGG" trademark. Many people already think that "warm baby" is a disposable small fever patch; Snow boots are "UGG", and "UGG" is snow boots. In fact, this has been on the edge of ambiguity or dilution, and it has become the edge of common names. Another example is "beauty contact lenses". Many girls say that I am going to buy beauty contact lenses, but in fact she is going to buy "color contact lenses". Another example is Baidu, the leader of search engine in China, let's go to Baidu, and so on. These are all examples of trademarks being diluted and gradually becoming common names. The difference between the two is that "warm baby" and "UGG" are diluted by others and made by the market; Some dilution is the laissez-faire of trademark owners, such as "beauty contact lenses"; And some downplay even the initiative of trademark owners, such as "Baidu", and take the initiative to use "Baidu" to represent search. Baidu obviously didn't learn the lesson from Google.

Trademark distinctiveness is not static, but can be restored with the use of trademark rights, from scratch, from weak to strong, from existence to nothing, from strong to weak, and even gradually faded, so trademark distinctiveness has been in the process of dynamic evolution, changing with the use behavior of trademark owners.

Relative reasons:

The examination and application of relative reasons in the process of trademark authorization is the most common and universal, including prior rights, approximate identification and so on.

1) Let's give an example of "boss". If someone applies for the trademark "8088" on a clothing bag, the trademark looks very similar to "BOSS" from a distance, which is generally considered to constitute an approximate trademark. The judgment of trademark approximation, as mentioned in the example just now, should be based on "the general attention of the relevant public" and the general attention of ordinary consumers.

2) At the same time, the principle of "isolated examination" should be adhered to when judging the similarity of trademarks. We can't put two trademarks together to see if they are similar; But look at the cited trademark first, then put it down and look back at the batch of trademarks. If we think that two trademarks look very similar or confusing enough, then we can conclude that they constitute similar trademarks.

3) The approximate judgment of trademarks should also follow the principle of "overall observation". For example, the quoted trademark completely contains our customer's trademark, but there are other different components. On the whole, the prominent part of the trademark, the prominent part of the font size, or the prominent part of the color are the same, which is generally considered to constitute an approximate trademark. This is the principle of "comparing the main parts and observing the whole".

4) Furthermore, the consideration of judging the similarity of trademarks should be comprehensively judged in combination with the characteristics of designated goods or services. Let's take a case where the trademarks of Hyundai Motor (Xieh) and Honda Motor (Zhengh) are both * * *. By comparison, in principle, we think that oblique H and positive H are very close in composition, prominent parts, overall appearance, address and meaning, but why are they allowed to register and exist peacefully in the market? All this is because the goods they designated for use are very special, all of which are cars.

First of all, the sales channel of cars is mainly 4S stores. Generally speaking, we have decided whether to go to Hyundai or Honda's 4S shop before buying a car. Secondly, the sales price of cars is much more expensive than other ordinary goods, so consumers usually choose goods with higher attention to buy carefully. Therefore, when determining the similarity between Hyundai and Honda's "H" trademarks, considering their special sales channels and expensive prices, consumers usually have a higher duty of care or will distinguish the source of goods with very cautious attention, so the subtle differences between the two trademarks are enough to avoid misunderstanding or confusion. The two trademarks were finally determined to be dissimilar.

5) In addition, the originality of trademarks is also very important. For example, the famous "Haier" trademark at home and abroad. The two Chinese characters "Haier" are neither a fixed collocation nor a fixed phrase in ancient Chinese in China, nor are they common words in modern Chinese. "Haier" is an original word, so it has greater significance. The same example is the "Sony" trademark, which is an imported product and a translated name. It is neither a fixed collocation nor a common phrase, so "Sony" is also very prominent and easier to register.

6) Many factors should be considered in the examination of Chinese character trademarks, such as the arrangement order and the number of identical Chinese characters. In general, four Chinese characters with three identical words will be easily recognized as approximate, but there will be exceptions if the first Chinese character is different; Three Chinese characters with the same two characters are generally not considered approximate, except in special circumstances. For example, "West Lake" is a registered trademark, and our application for registration of "New West Lake" is theoretically contradictory. It is definitely not possible to apply for registration of "Large/Small West Lake". According to the current censorship standards, words with no practical significance such as "big/small", "new/old" and "zhi/Hu/zhe/ye" attached to "West Lake" are also similar to the previous trademark of "West Lake" and cannot be registered. So, let's reverse the order of the words. Can "Huxi" be registered? Of course not. For example, if there is a previously registered trademark "Shaolin Temple", then the application for registration of "Shaolin Temple" is definitely in conflict. By the same token, there is a "Tianyi Pavilion" in Ningbo, so can we apply for registration of "Tianyi Pavilion"? It is theoretically impossible. Because according to the writing and reading habits of Chinese characters in China, Chinese characters can be arranged from left to right or from right to left. Accordingly, "Shaolin Temple" means "Shaolin Temple" and "one pavilion a day" means "one pavilion a day".

7) Give another example of Chinese characters with radicals. For example, my last name is Joe, Jordan's Joe. Then, if we add a single face or a wooden face in front of Jordan's "Joe", in theory, "Jordan" will be considered similar to "Jordan".

8) Chinese characters describing the functions and characteristics of goods, such as trademarks on food, have the suffix "Xiang"; Trademark on clothes, followed by color, model and so on. These descriptive words are usually considered meaningless when used to specify goods. In trademark examination, these Chinese characters will be ignored in most cases. Also, in the catering industry and most service industries, "Pavilion/Taiwan/Building/Pavilion/Hall/Hall/Office" will be used as a suffix, and these words are usually ignored in comments. For example, in the catering industry, there is a previously registered trademark "Deyuelou", and we apply for registration of "Deyuelou". Theoretically, the two will also be considered similar.

9) Customers sometimes ask such questions: There was an "A" and a "B" before, but now I want to apply for "A+B". Can I register? I think it depends on the situation. Like shaolin soccer. Assuming there are registered trademarks of Shaolin and football, will shaolin soccer's application for registration be approved? Under normal circumstances, it is possible. If Shaolin is famous, I'm sorry to reject it; Or "football" is well-known, then I am embarrassed to dismiss it. If the trademarks Shaolin and Football are unknown or unknown in related industries, then there are still "A" and "B". The application for registration of "A+B" is generally not considered to be similar to "A"/"B", and the registration of "A+B" can be approved.

10) A controversial topic is briefly discussed here: "Evergrande" and "Evergrande Ice Spring".

There is a registered trademark "Evergrande" on the 32nd category of goods, and then someone applied for "Evergrande Ice Spring". The trademark rumor of "Evergrande Ice Spring" has been initially approved and announced, but it has not been announced at present. There are many voices in the industry on this issue. Let me give you my opinion. Through the search, we can see that in the similar group where the commodity "water" is located, there is also a registered trademark of "Ice Spring". I haven't verified whether the trademark "Ice Spring" has been put into use in the market, but it is at least an effective registered trademark at present. We assume that it is still in continuous use, and "Ice Spring" is still a prominent registered trademark. Then, applying the words "A" and "B" I said before, applying for registration of "A+B" is generally not considered to be similar to "A"/"B", so you can register "A+B". There are "Evergrande" and "Ice Spring", and it is very likely that "Evergrande Ice Spring" will be approved; That is to say, "Evergrande Ice Spring" is not similar to "Evergrande" or "Ice Spring". Of course, this is only a hypothesis, but the possibility still exists.