2010 Xing Shang Su Zi No. 246
|Decision No.||2010 Xing Shang Su Zi No. 246|
|Date||June 2, 2011|
It is a trademark which is "the same as, or similar to, other´s registered trademark, or prior, filed trademark, of the same or similar goods or service, so as to cause relevant consumers to likely get confused" and which cannot be registered. This is clearly defined in Article 23, Paragraph 1, Subparagraph 13 of the Trademark Act as amended on May 28, 2003. And, a trademark emphasizes on its capability of causing relevant consumers of products or services to understand that it is a mark that represents the products or services. By that, others´ products or services could be distinguished so as to protect the trademark right and interests of customers, to maintain fair competition in the market, and to promote the normal development of industries and businesses. (Please refer to Articles 1 and 5 of the same Act.) As a result, Article 23, Paragraph 1, Subparagraph 13 of the same Act does not allow a trademark to be registered, because such the trademark for the application is the same as, or similar to, the figures of others´ registered trademarks or prior, filed trademarks, where the products or services are the same or similar so as to cause relevant consumers to be likely confused. Under the doctrine of trademark registration and the first-to-file doctrine and the spirits of these doctrines, others´ registered trademarks or prior, filed trademarks are protected, so as to make sure trademarks function as identification of products and sources of services. Thus, the so-called "prior, filed trademark" in this provision means a trademark that has been filed by other but has not been approved, or has been rejected for registration, by the defendant Intellectual Property Office, when the present trademark application is rejected. As for the trademarks that have been filed by other parties but have been rejected and become final, because the other parties definitely cannot acquire trademark rights, where their trademark rights have never existed since the beginning, so no effective power has been existed to restrain others´ trademark application for registration. The protection of their functions of identification of products and sources of services is not necessary. There is no such fact that consumers can likely get confused with the sources of products it represents or the main body of manufacturing, so there is no "prior, filed trademark" of this provision.
Prior, filed trademark, likelihood of confusion
|Relevant statutes||Article 23, Paragraph 1, Subparagraph 13, Article 1, and Article 5 of the Trademark Act|
- Release Date:2020-11-13