Beijing Higher People's Court
Administrative Judgement
(2019) 4329
The appellant is Shenzhen Aichewu Auto Supplies Co, LTD., Room C1208, Building C, Zhantao Technology Building, Intersection of Minzhi Avenue and Gongye East Road, Xinniu Community, Minzhi Street, Longhua District, Shenzhen City.
The appellee is National Intellectual Property Administration (CNIPA), No.6, West Tucheng Road, Jimen Bridge, Haidian District, Beijing.
Third Party: Guangdong Aiche Hut E-Commerce Technology Co, LTD., Building 3, No.16, Keji 4th road, Songshan Lake Park, Dongguan City, Guangdong Province.
Decision of Being Sued: The evidence submitted by the appellant cannot form a complete chain of evidence, proving that the appellant made an open, true and legal commercial use of the trademark in the approved advertising and other services during the period from November 23, 2014 to November 22, 2017 (hereinafter referred to as the designated period). Therefore, it is decided to revoke the trademark.
The court holds that, the focus of this case is whether or not the trademark litigation has been used truly, legally and effectively for commercial purposes, such as advertising and promoting for others during the specified period of time. This use includes the use of the trademark on merchandise, packaging or containers, and merchandise transaction documents, or the use of the trademark in advertising, exhibitions, and other commercial activities.
In this case, it can be seen from the evidence of agency contract, procurement contract, exhibition contract, special installation and construction contract and invoice submitted by the plaintiff that, the plaintiff shall, within a specified period of time, use the trademark for "marketing", "promoting for others" and other services and support by such evidence as the corresponding invoices, so we think the trademark litigation within a specified period of time "advertising, marketing and so on for other services such as the actual real, legal and effective commercial use, shall be maintained.
To sum up, the main evidence for the appellee to make the decision to be sued is insufficient, so this court withdraws it according to law. The appellant's claim has factual and legal basis and shall be supported. In addition, part of the evidence adopted in this case is the new evidence added by the appellant in the lawsuit, which is not the basis for the appellee to decide to be sued. Therefore, the litigation costs of this case should be borne by the appellant. In accordance with Article 70 (1) of the Administrative Procedure Law of the People's Republic of China, the judgment of the court is as follows:
1. The decision of the Review and Adjudication Board of the former Trademark Review and Adjudication Board of the State Administration for Industry and Commerce [2019] No. 28195 on the trademark revocation of "Aichewu icaroom and map" No. 12022540 shall be revoked;
- The National Intellectual Property Administration (CNIPA) of the appellee shall make a new decision on the revocation of the application for reexamination filed by the appellant Shenzhen Aichewu Auto Supplies Co, LTD. against the trademark "Aichewu icaroom and map" No. 12022540.
The case of 100 yuan was bore by Shenzhen Aichewu Auto Supplies Co, LTD. (Have paid).
If the parties are not satisfied with this judgment, they may, within 15 days from the date of service of this judgment, submit the appeal petition and a copy to this court and pay the case fee of 100 yuan to the Beijing Higher People's Court.
