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Serious Topic Behind the "Juice Bureau" Trademark Incident: Enterprise Tree Brand Should Stay Away from "minefield"
Last week, a "graphic" trademark, which resembles the emblem of the State Intellectual Property Office, was announced in the first instance. This news quickly spread in the WeChat circle of friends, and quickly fermented under the promotion of new media, and evolved into a "public event" of the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the "Trademark Office"). The scope of influence almost exceeds all other trademark events in the past.
The latest news is that the trademark applicant has taken the initiative to withdraw the "juice bureau" trademark. From the spread of the news to the forced voluntary withdrawal, we have no way of knowing what setbacks the applicant has experienced during this period. However, it is this trademark that has unexpectedly pushed the Trademark Office (the trademark examination cooperation center is actually carrying out the trademark examination work) to the forefront of public opinion, triggering a crisis of trust about the "quality of trademark examination. For the applicant himself, he has also been labeled as a "speculator" and "dishonest", and there is a lot of criticism and abuse. This way of becoming famous overnight is obviously not a good thing for enterprises. And the agency of this trademark has also encountered a lot of crisis, because the newly implemented Trademark Law stipulates the responsibility of examination of trademark agencies. For such trademarks, trademark agencies should clearly inform the client that those who violate the provisions may face administrative penalties including warnings and fines.
This trademark has caused a significant negative impact. The reason is that the trademark itself has touched the "minefield" of the prohibitive clauses in the "Trademark Law". Specifically, it is suspected of belonging to Article 10, paragraph 1, item (I) of the "Central State Organ" and item (VIII) of the "Adverse Effects" signs.Article 10 of the Trademark Law specifically stipulates that "the following signs shall not be used as trademarks.":
The (I) is the same as or similar to the national name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, medals, etc. of the the People's Republic of China, and is the same as the name, logo, name of a specific location of the central state agency, or the name of a landmark building, Graphic of the same;
(II) identical with or similar to the country name, national flag, national emblem, military flag, etc. of a foreign country, except with the consent of the government of that country;
The (III) is identical with or similar to the name, flag, emblem, etc. of an international intergovernmental organization, except with the consent of the organization or where it is not easy to mislead the public;
The (IV) is the same as or similar to the official marks and inspection marks indicating the control and guarantee, except for authorized ones;
(V) the same as or similar to the name or emblem of the "Red Cross" or "Red Crescent;
(VI) with ethnic discrimination;
The (VII) is deceptive and easily leads the public to misunderstand the quality and other characteristics of the goods or the place of origin;
(VIII) harmful to socialist morality or have other adverse effects." "Place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks......".
The above terms are very strict in practice, and enterprises should stay away from these "minefields" in the process of establishing a brand ". Otherwise, with a little carelessness, the potential risks may be detonated at any time like the "Juice Bureau" trademark incident, and develop in an unpredictable direction.
Of course, there are also some enterprises not only did not take the initiative to avoid the "minefield", but also rashly "hit the mine" with luck ". In recent years, some people have applied for trademarks such as "Sun Yat-sen", "Xi Jinping", "Hu Jintao", "Hu Chunhua" and other trademarks around influential political figures. Except for the "Hu Chunhua" trademark, which was registered by chance (it was still invalid in the end), other trademarks were directly rejected. An attempt by a Fuzhou enterprise to apply for a trademark in the name of "Xu Ruibiao", the former director of the Trademark Office, was also "mercilessly" rejected. A few years ago, there was a wave of applications for the registration of "Xi Da" trademarks. 57 "Xi Da" trademarks applied for in various categories were rejected without exception. How will this kind of application increase the number of trademark applications and examinations, and repeatedly add to the already overburdened limited trademark examination resources? We will not discuss it for the time being. From the perspective of the enterprises themselves, if calculated according to the official fee of about 800 yuan per application and the agency fee of about 1,000 yuan at that time, these enterprises have burned almost 100,000 yuan in this wave of "Xi Da" trademark applications in vain. Thus, such speculative registration with a sense of luck will be strictly prohibited.
This article pays more attention to the fact that under the call of "mass entrepreneurship and innovation", more and more entrepreneurs are joining the entrepreneurial torrent. They often realize the importance of "brand" and want to choose an eye-catching, unforgettable name to achieve the effect of attracting consumers and expanding publicity. However, these small and medium-sized enterprises in the emerging and initial stage generally lack trademark knowledge. Under the trend of choosing popular public vocabulary names, they are likely to inadvertently "touch the thunder".
These enterprises should stay away from the "minefield" in the process of brand building ". and requires special attention,Article 10 of the Trademark Law is called the "absolute prohibition clause" and is very strict in the practice of trademark examination.
First, the circumstances prohibited by the provision are "all-encompassing" and very broad in scope.The provisions on prohibited signs in items (I) to (VI) of the first paragraph of Article 10 of the Trademark Law are relatively specific and can be avoided as far as possible by checking one by one. However, the provisions on "adverse effects" in item (VIII) belong to the bottom-up provisions of Article 10 as a whole, and all signs that have a negative or negative impact on China's political, economic, cultural, religious, ethnic and other social and public interests and public order, including those that adversely affect religious feelings, social harmony, national unity, public sentiment, language writing rules, and so on, are within the scope of its prohibition. Signs suspected of violating the provisions of Article 10, even if they do not belong to the specific circumstances of other items, will often fall into the "adverse influence" of the "Tathagata Buddha". Moreover, these provisions are applied in principle equally, as long as the violation of the provisions of the logo, regardless of any subject, shall not be registered as a trademark.
Second, in response to these prohibited signs that touch the "minefield", the Trademark Law also sets up many barriers in terms of procedures.In addition to the possibility of being rejected at the preliminary examination stage of the trademark, a three-month announcement period is set for signs that have passed the preliminary examination, during which anyone can file an objection. The trademark of the "Juice Bureau" was discovered and made public by the discerning "people" during the three-month announcement period after it passed the preliminary review by luck, and some "enthusiastic people" came forward to express their objections. And even if it is able to survive the announcement period and obtain registration, it may also face the risk of being invalidated by the Trademark Office or by anyone else. A typical case is that Shanghai Chenghuang Jewelry Co., Ltd. once registered the "Chenghuang" trademark on "jewelry" products, and was administratively recognized as a well-known trademark by the State Administration for Industry and Commerce in 2011. However, it was later declared invalid because it involved religious sentiments (the law at the time was called "dispute application"). The court held that "Cheng Huang" has a long history as a Taoist god and is a god closely related to people's lives. In this case, the use of "Chenghuang" as a trademark will hurt the religious feelings of the relevant public who believe in Taoism, and have a negative and negative impact on social public interests and public order. In the end, the trademark was ruled to be invalid.
During the trial of this case, Chenghuang Company once proposed to the court that the "Chenghuang" trademark has established a high market reputation and formed a related public group after long-term use, and should be maintained. However, the court held that respect for the objective reality of the market should not violate the prohibitive provisions of the Trademark Law. In the case that the trademark violates Article 10, Paragraph 1, Item (VIII) of the Trademark Law, even if the disputed trademark has been used with a high reputation or even has been recognized as a well-known trademark by the Trademark Office, it should not damage the legal provisions. Seriousness and certainty.
Third, the prohibited signs that touch the "minefield" shall not only be registered as trademarks, but also shall not be used as trademarks.Article 10 of the Trademark Law stipulates that the wording is "the following signs shall not be used as trademarks". The use will face the risk of being punished. Article 52 of the Trademark Law stipulates that "if the use of unregistered trademarks violates the provisions of Article 10 of this Law, the local administrative department for industry and commerce shall stop it, make corrections within a time limit, and may notify it. If the illegal business amount is more than 50,000 yuan, a fine of less than 20% yuan may be imposed. If there is no illegal business amount or the illegal business amount is less than 50,000 yuan, A fine of less than 10,000 yuan can be imposed". The "WOWO" case, which the author has represented, has faced this risk. In this case, the trademark registrant took root in the southwest and operated hundreds of chain convenience stores dominated by fast-moving consumer goods. Its "WOWO and Tu" trademark was once recognized as a "Chengdu Famous Trademark", but because the trademark contained The stripes of "red-white-blue-white-red" were accidentally opposed by the Thai Intellectual Property Office. This led the Trademark Office to issue a notice of revocation ex officio on the grounds that "the order of the colors designated for use in the registered trademark and the appearance style in actual use are similar to the Thai flag, which violates the provisions of items (II) and (VIII) of the first paragraph of Article 10 of the Trademark Law. After that, through the efforts of the Trademark Office, the Trade Judge and the Court, the trademark was finally maintained. However, in this process of twists and turns, enterprises are facing great pressure, because once the trademark is not guaranteed, it may face the problem of illegal use.
For enterprises, it is quite difficult to judge the "minefield. in addition to the above three points,Also need to pay attention to the combination of industry characteristics, cultural background, review scale and other factors comprehensive consideration.
More and more entrepreneurs have joined the tide of "Internet", but the possibility of "thunder" in the process of establishing a brand is very high. The reason is that many new words and hot words spawned in cyberspace are often enthusiastically sought after by netizens, so they often become the best choice for quickly establishing a brand under the Internet attention economy, but these words may not be used as trademark applications. Can be recognized by the law, repeatedly rejected. For example, the term "Diaosi", which is familiar to netizens, is considered to be contrary to socialist spiritual civilization. A total of 50 "Diaosi" trademark applications were rejected without exception. The word "tuhao", which has been given new ideas in online games, has appeared as many as 588 applications, almost all of which have been rejected. In a similar situation, there are also 20 "ran and egg" trademarks under application, which I am afraid are almost impossible to pass.
"Plants vs. Zombies" is also a typical example, and the trademark familiar to netizens has not been approved for registration. The court held that, with the cognitive level of the relevant public, the "zombie" in the trademark application is a legendary rigid body and a ghost with feudal superstition. And "plants vs zombies" contains "zombies" which has the elements of feudal superstition color. The game trademark "SF Special Forces" was also not approved for registration. The court held that: Special Forces, as a common force establishment in contemporary military powers, are due to their equipment, warfare and special tasks performed in the current international political and military environment. It is getting more and more attention from the public. Under this political background, taking "special forces" as an integral part of the trademark can easily remind the public of sensitive political and military issues at home and abroad, and should not be used as a trademark. I believe that at this moment, some readers and the plaintiff put forward: "Special Forces" aims to tell consumers that this is a military-themed game, which conforms to the characteristics of online games and does not produce adverse effects. However, the court did not support this.
The above two cases mean that words such as "ghost" and "god", as well as words such as "army", "military rank" and "arms", can express the themes and contents of horror games, suspense games or war games, and become the priority choice of game names, but in the process of applying for registration as trademarks, they are likely to encounter "minefields", the prospects for registration are not promising. In this regard, the game industry entrepreneurs need to pay more attention.
The scale of judging "minefield" is well reflected in the two trademark cases of "tribal conflict" and "CLASH OF CLANS. An American game company applied for two trademarks at the same time, "tribal conflict" and the corresponding English translation "CLASH OF CLANS" on services such as "providing online games on computer networks. As for the trademark of "tribal conflict", the court held that for the relevant Chinese public, the word "tribe" belongs to the group life form in the long history. "Tribal conflict" can be easily understood as the intensification of contradictions caused by interest disputes between different tribes in the past, which is a description of a social and historical phenomenon, and its meaning itself will not cause negative and negative psychological implications to the public, the public will not think that the word has broken through its stable and universal value consensus. In the case of the trademark "CLASH OF CLANS", the court held that "CLASH OF CLANS" could be translated as "tribal conflict" or "clan conflict". The term "clan" is easily understood by the Chinese public as one or more families gathered together because of the same surname, etc. At present, there are still villages dominated by clans in our country. Therefore, the Chinese translation of the trademark dispute "clan conflict", which describes the intensification of conflicts caused by conflicts of interest between clans, may cause emotional disgust or rejection of the public, and may also cause negative psychological implications to the public, which will have a negative and negative impact on social harmony, national unity and other social public interests and public order. For the foregoing reasons, "Clash of Clans" was passed and "CLASH OF CLANS" was dismissed.
The different fates of these two trademarks reveal two problems:
First, if a word has multiple meanings, as long as one of the meanings may have a negative and negative impact on social public interests and public order, it will be considered to violate the law.
Second, if it is in the United States where the applicant is located, even if "CLASH OF CLANS" is understood as "clan conflict", it may not constitute a social adverse impact, but it is not the case in China.
This shows that the judgment of trademark "minefield" needs to be understood in combination with cultural background differences. Internet companies, especially online game companies, need to pay more attention to these differences in the process of "bringing in" or "going out.
After reading the above case, I am afraid that many readers will suggest that China's review of banned signs is too harsh or even far-fetched. However, the review process needs to take into account each group to which the trademark is directed. As long as one of the groups is standing, the trademark has these prohibited factors, which need to be paid attention. Taking the skeleton graphic trademark applied for by a company as an example, the court held that "although with the development of the times, commodities with skeleton graphics as design elements have appeared in the market and have been accepted by young consumer groups, skeleton graphics have not yet become the graphics generally accepted by the whole society, and some people will still think of death when they see skeletons and feel fear and discomfort". In other words, whether the skull figure can be registered or not, it is more necessary to consider the feelings of the group of "thinking of death and producing a sense of fear and discomfort" rather than the feelings of the "young consumer group", although the latter may not only be able to accept it, but even think it has artistic beauty. It is precisely because of this that the censorship authorities need to be strict and cautious when dealing with these "minefield" trademarks.
Senior practitioners in the trademark industry know that trademark examination pays great attention to "influence" and will take signs that touch "minefields" more seriously. Therefore, it is the best policy for enterprises to take the initiative to avoid it in advance. If you vaguely feel that the brand you are creating is suspected of "touching mines", in addition to listening to the 1234 reasons for registration analyzed by others, you should also consider the risk factors repeatedly in combination with the legal provisions. This is like the "Juice Bureau" trademark mentioned at the beginning of the article. These days, many people still propose that it does not violate Article 10 of the Trademark Law, but what is the final result in fact?