"Jingdong" trademark has been revoked, but the trademark is not registered successfully and everything will be fine.




Release time:2016-08-11

The trademark involved is not the "Jingdong" trademark owned by Jingdong Company, but applied by other companies. Its application was before Jingdong Company applied for the "Jingdong" trademark, so the trademark applied by Jingdong Company did not pass the examination of the Trademark Office for a long time in the category 35 3503 of the "promotion (for others)" goods and services group. Of course, if you check the trademarks registered by Jingdong Company through the Trademark Office, many of them will be registered after 14 years.      


Figure I


However, it should be emphasized that before May 16, 2016, Jingdong has obtained the registered trademark of the word "Jingdong" and is facing an unknown future. Why do you say that? Please look down.


Who applied for the revocation of the Xianghe Great Wall Company's "Jingdong" trademark, and what happened in the revocation process?


In 14 years, Lao Gao sent a small article in titanium media, discussing the registered trademark situation of Jingdong company, especially the contents of the 35th category of "selling (for others)" registered by him. At that time, it was assumed that it was not so easy for Jingdong to obtain the trademark rights of the contents of the service goods.


But today, Jingdong company should be able to put down the hanging heart. "Jingdong" may finally be in the "sales (for others)" service on the exclusive "Jingdong" trademark. Here's the thing:


Before jingdong company applied for category 35 "promotion (for others)", Xianghe great wall company applied for the trademark "jingdong JINGDONG and map" no 1951253 (see fig. 1). But according to the trial results. The company did not use the trademark on a large scale.


Time passed day by day, until later, Jingdong Mall appeared. As an e-commerce platform, the core of its brand is "selling (for others)". It stands to reason that Jingdong also wants to register the "Jingdong" trademark of category 35 3503 group "selling (for others). However, the registration application was mercilessly rejected. (For details, see the titanium media article: Liu Qiangdong's thorn in mind: "Jingdong" promotion trademark rights have been left behind by others?)


Later, there was a series of stories about the "revocation of the three-year unused" series of 6-year-old "jingdong JINGDONG and map" trademark No. 1951253 (see fig. 2 for the trademark application process).


Figure II


1. No. 1951253 "Jingdong JINGDONG and map" trademark (hereinafter referred to as the reexamination trademark) was applied for registration by Xianghe Great Wall Company to the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office) on May 11, 2001. The designated service is category 35 sales promotion (for others) service.


2. On June 14, 2011, the Trademark Office accepted Shen Qingsong's application for revocation of the trademark "Jingdong JINGDONG and map" No. 1951253 on the grounds that it had stopped using it for three consecutive years. Upon examination, the Trademark Office decided to revoke the trademark under review.


3. Xianghe Great Wall Company filed an application for review with the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce because it did not accept the decision of the Trademark Office. The main reason is that Xianghe Great Wall Company advertised and promoted the review trademark during the specified period, and in fact achieved the result of sales promotion, requesting a ruling that the review trademark continues to be valid. At the same time, it submitted evidence materials including wall advertisement, sales invoice, purchase invoice, exhibition invoice, advertisement invoice, etc.


4. On December 16, 2013, the Trademark Review and Adjudication Board issued Shang Ping Zi [2013] No. 150031 "Decision on Revocation and Review of" Jingdong JINGDONG and Map "Trademark No. 1951253" (hereinafter referred to as the accused decision), confirming that although a series of evidence submitted by Xianghe Great Wall Company, such as evidence and photos, sales invoices and payment vouchers, purchase invoices, publicity manuals, etc., were notarized, however, either the time is not shown, or the review trademark is not shown, and Xianghe Great Wall Company has not provided other evidence to support it. Therefore, considering the evidence in this case, it is difficult to conclude that Xianghe Great Wall Company has used the review trademark in the sense of trademark law in promoting (for others) services during the specified period. In accordance with the provisions of Article 49 of the Trademark Law of the the People's Republic of China (hereinafter referred to as the Trademark Law) as amended in 2001, it is decided that the trademark under review shall be revoked.


5. Subsequently, according to the provisions of the Trademark Law, Xianghe Great Wall Company filed a lawsuit with the Beijing No. 1 Intermediate People's Court within 30 days of receiving the ruling from the commercial judges, requesting the decision to reject the trademark and maintain the validity of the trademark "Jingdong JINGDONG and map" No. 1951253.


6. Beijing No.1 Intermediate People's Court (2014) BOC (Zhi) Chu Zi No. 6167 Administrative Judgment: Reject Xianghe Great Wall Company's Claim.


7. Xianghe Great Wall Company refused to accept the original judgment and filed an appeal with the Beijing higher people's Court in February 2016, requesting to revoke the original judgment and the accused decision.


8. The Beijing Higher People's Court made a final judgment on May 16, 2016: the appeal was rejected and the original judgment was upheld. Decision: The trademark shall be revoked upon review.


That is to say, at this point, the trademark "jingdong JINGDONG and map" applied by Xianghe great wall company no 1951253 is invalid. There is no chance of turning over. (If the final ruling No. 1951253 "Jingdong JINGDONG and map" trademark has not been revoked, then many 35th category "Jingdong" trademarks applied by Jingdong company will probably be exempted from being invalid).


Although the applicant who "revoked three years of unused" has other people, not Jingdong. However, all discerning people know that the trademark "Jingdong JINGDONG and map" No. 1951253 is invalid, and the biggest beneficiary is Jingdong company.


At this point, Jingdong Company may finally monopolize the trademark of "Jingdong" in the service of "selling (for others).


enlightenment and lessons


1. After the trademark registration is successful, not everything will be fine. Reasonable and standardized use can effectively extend the life of the trademark. Not using it means death.


For trademarks that are not applicable for a long time, the timetable should be reasonably planned and managed. For a specific period of time, a certain amount of evidence of continued use is specifically or deliberately retained.


Article 49 of the Trademark Law:


If a trademark registrant, in the course of using a registered trademark, changes the registered trademark, the name, address or other registration matters of the registrant, the local administrative department for industry and commerce shall order it to make corrections within a time limit; if it fails to make corrections within the time limit, the Trademark Office shall revoke its registered trademark.


If a registered trademark has become the common name of the goods approved for use or has not been used for three consecutive years without justifiable reasons, any unit or individual may apply to the Trademark Office for the cancellation of the registered trademark. The Trademark Office shall make a decision within nine months from the date of receipt of the application. If there are special circumstances that require an extension, it may be extended for three months with the approval of the administrative department for industry and commerce under the State Council.


The legislative purpose stipulated in the second paragraph of Article 49 of the "Trademark Law" is to activate trademark resources, clean up idle trademarks, and urge trademark owners to fulfill their continuous use obligations, not to punish trademark owners. Therefore, in commercial activities, the open, legal and true use of trademark marks indicates the source of goods or services, so that the relevant public can distinguish the way of different market subjects providing goods or services, are the ways of using trademarks.


2. After the trademark registration is successful, in the process of trademark use, we should learn how to effectively retain the evidence of use. In general, the most common evidence includes advertisements, brochures, invoices, contracts, various activities, etc. Be good at showing trademark information and time of use in relevant evidence. Or reserve other supporting evidence. For example, for invoices, trademark information can be filled in the remarks column. For example, in a contract, place a trademark map in the appropriate location or header and footer.


3, the right to trademark, it may be a difficult and long process. Don't give up your choice too soon. "Jingdong" trademark withdrawal trinity case, before and after 6 years before the end of the final trial. Compared with the "Jingdong" trademark registered by Jingdong Company, there are many rejected trademarks, and some insist on continuing to fight for rights and apply for rejection review. You can even appeal to the Beijing Intellectual Property Court, the Beijing High Court. Many trademarks are successfully confirmed at the court stage.


4. Refer to Lao Gao's personal experience (a lot of trademarks have been revoked through the "withdrawal of three" method, which is simply relaxing and pleasant!), According to the legislative purpose stipulated in the second paragraph of Article 49 of the Trademark Law, in the future, trademarks registered by others but "not used for three consecutive years" will be targeted. After investigation, it is determined that no trace of use is found, and the application for revocation is bravely submitted ". If the trademark owner fails to submit the evidence of use required by the Trademark Law, it will be revoked by the Trademark Office. In this way, applicants who really want to use it can apply for registration. Get protection. So remind all trademark holders to register, be sure to register to keep your trademark use evidence.


5, do brand trademark protection, improve the enterprise intellectual property protection and practical awareness. There is a plan, purposeful planning good brand operation strategy. I think again, if Xianghe Great Wall Company was willing to sell the trademark to Jingdong Company a few years ago, would it be a good deal?

Source: IPRdaily First Titanium Media