Gaowo represented the litigation of review filed by the appellant Xiamen Tongrenxin against the appellee CNIPA.
Basic information:
The appellee, CNIPA, decided that proposed mark “同仁心”with No.30866619 constituted the situation referred to by Item 7, Paragraph 1, Article 10 of Trademark Law, so it should be refused.
The opinion of the Court:
The court holds that the focus of dispute of this case is whether the proposed mark constituted the situation referred to by Item 7, Paragraph 1, Article 10 of Trademark Law
Item 7, Paragraph 1, Article 10 of Trademark Law stipulated that those having the nature of fraud, easily misleading the public on the characteristics of the goods , such as quality and production place shall not be used as trademarks.
The so-called “having the nature of fraud” means that the words, graphics, etc. used in the proposed trademark conceal the truth of the goods or services used by the trademark in terms of quality, main raw materials, function, use or origin, etc, which misleads the public about the truth of goods or services.To judge whether a trademark is deceptive, it should be examined and judged from the following two aspects based on the general cognition level and knowledge ability of the public and combined with the commodities or services designated for use:1st,whether the proposed mark itself is deceptive or not, that is, whether the meaning, appearance of the proposed mark are not consistent or not completely consistent with the quality, function, use, raw materials and the origin place of the designated products; 2nd,whether the logo itself is deceptive enough to mislead the public about the characteristics or origin of the designated products.
In this case, the Chinese character “心”contained in the proposed mark “同仁心”does not only mean “the heart”, but also means “thoughts” and “feelings”.And combined with the specific context of the proposed mark, although it designated medical products such as “vaccine” and “human medicine”,the relevant public tend to interpret the proposed mark“同仁心” as the “benevolence”of the physician, instead of relating it to “heart”only. So the proposed mark itself is not deceptive and it will not cause the relevant public to have a wrong understanding of the characteristics or origin of the goods. Therefore, the proposed mark did not constitute the situation prescribed by Item 7, Paragraph 1, Article 10 of Trademark Law. And the relevant claims of the appellant have factual and legal basis and our Court shall support it.
To sum up, the fact that the sued decision was wrong with the applicable law shall be corrected by this court in accordance with the law, and the appellant’s claims and reasons have factual and legal basis, and this court shall support it. In accordance with Item (1) and Item (2) of Article 70 of the Administrative Procedure Law of the People's Republic of China, the Court made the following judgment:
- It is decided to revoke the review decision of the appellee, National Intellectual Property Administration, No. 289342 [2019] on the trademark “同仁心” with No. 30866619.
- The appellee, National Intellectual Property Administration, shall make a new decision on the review application of Xiamen Tongrenxin for the trademark “同仁心” with No. 30866619.
