Source: chinese trademark journal
The approximation of trademarks is one of the important issues in administrative cases where trademarks are authorized to fix. In judicial practice, except in the case of a trademark application for dismissal of a review of the administrative case, the proximate judgement of a trademark is centred on the proximate judgement of the trademark, and a comprehensive examination is made of whether it is likely to cause confusion among the public concerned, taking into account such factors as the similarity of the commodity, the visibility and visibility of the trademark, the degree of interest of the public concerned and the subjective intent of the trademark applicant. However, given the natural differences in the socio-cultural, linguistic and grammatical expressions of different geographical regions, and the fact that markings in chinese and foreign languages are themselves very different, it is difficult for foreign trademarks to obtain the strength and intensity of the protection of trademark rights consistent with their distinctiveness and visibility, or to regulate malicious registration as a whole. Thus, in the author's view, the “stable correspondence” should be at the centre of the determination of the applicable rules for the approximation of trade marks in chinese and foreign languages。
I
Understanding of “stable correspondence”
With regard to the proximateness of trademarks, for example, pure-text trademarks, although there are many influencing factors, the degree of approximation of the label itself is the core element of the judgement. In review practice, if the mark itself is neither identical nor similar, then other factors need not be considered and the possibility of confusion can be directly excluded. The possibility of confusion needs to be further explored in the context of other factors only if the minimum core element of the marker itself is met. In other words, the approximation of a general trademark usually involves two steps: the first is to determine whether the objective elements of a trademark are similar, and the second is to determine whether the coexistence of a trademark would lead to confusion among the public concerned. In cases involving approximate judgements of chinese and foreign trademarks, it is common for the term to have multiple voices and meanings, due to differences in linguistic settings, whether transliteration or interpretation, and it is clear that the basis and core of the judgement is biased by the mere approximation of the objective element of the symbol itself. On the one hand, the protection of all transliteration and translation of foreign trademarks may over-expand the monopoly of trademark rights and the improper appropriation of the chinese language as a public domain resource; on the other hand, a waiver of the protection of chinese-language symbols corresponding to foreign trademarks, or an unreasonable limitation of their protection, would be contrary to the legislative intent of the trademark law to protect legitimate prior trademarks and would not discourage malicious registration. Thus, the approximation of objective elements, such as call, meaning and so forth, is no longer decisive in judging the approximation of foreign trademarks, and it is the first step in their approximation to take a holistic view of whether the chinese symbol and the foreign symbol are capable of establishing a stable correspondence。
The so-called “stable correspondence” should be a stable correspondence between the chinese symbols already developed in the general perception of the country's relevant public and the foreign symbols. In the specific case of an authorisation of trademarks, the reference to “chinese markings” in this context does not refer to a claim against a trademark, but rather to a claim by the right holder of a foreign trademark claiming to constitute a counterparty. The inherent logic of the judgement is not to compare directly the claim against a trademark in chinese with a reference to a foreign trademark, but rather to compare the claim against a foreign emblem with the claim against the trademark. Of course, at this point in time, it is not appropriate to over-expand the scope of their protection by applying a more stringent test of appreciation to such chinese symbols. At the same time, the scope of the “relevant public” should be limited to the public concerned in relation to goods or services authorized for use in a suit for trademark. Because regardless of the trademark's composition, its approximate determination is ultimately based on whether or not it would cause the public concerned to confuse the criteria. It is clearly pointless to judge the correspondence between a foreign-language symbol and the “relevant public” within the scope of the patented trademark, where the trademark is different from the category of goods or services authorized to use it. Of course, if the two trademarks are authorized to use the same category of goods or services, no special distinction is required。
With regard to the extent of the “reciprocal relationship”, in practice the majority of views considered it sufficient to achieve a “stable counterpart”, but there were also a few who considered that the “sole counterpart” criterion should be used. In the case concerning the declaration of invalidity of the right to mark the ossinburg sub-plate, concerning the correspondence between the foreign symbol “chateu ausone” and the chinese symbol “ossin”, the court of first instance held that while alain vogel had submitted web-based material such as an introduction to the web site, which reflected a certain connection between “chateu ausone” and “ossin” on some occasions or in some circumstances, there was insufficient evidence to support the reference to the “unquestionably, sole and stable” word “cchateu ausone”, which could not prove that the public in question had seen the word “ossin”, the “unquestionably, sole and stable” would have thought of “chateau ausone” and, in turn, the chinese translation would have been protected by similar trademark rights. The court of second instance, on the other hand, stated that the reference to the trademark “chateau ausone” was a foreign trademark, and that “ausone” was a significant part of its identification. According to the evidence submitted by alain vodger, although “ausone” can be translated as “osron”, etc., it can be concluded that “ossin” is also one of the main chinese translations of “ausone”, in conjunction with evidence such as the translation of terms related to importing wines, and related reports in the online media. In such a case, the apparent identification of the competing trademarks “ossinburg” and “osin” constituted a similarity, and it could be concluded that the competing trademarks and the quoted trademarks constituted a similarity. Moreover, in the rafidain trademark dispute, the supreme people's court held that the rafidain bar objectively established a strong link between rafidain and lafite, through years of commercial activity, in view of the use of the chinese term rafidain and its related vendors. It follows that, in judicial practice, a degree of “stabilization” is considered sufficient for the correspondence between the symbols of chinese and foreign languages and does not require a level of “single counterpart”. Because of the natural diversity of the different languages, the “sole counterpart” is simply an ideal counterpart, requiring the parties to prove the “sole counterpart” character of their foreign markings, which is not necessary in terms of the function of trademarks for identifying the source of goods or services, and may, instead, unreasonably increase the cost and difficulty of proof for the parties, contrary to the principles of equity and efficiency。
Thus, in the approximation of chinese and foreign trademarks, a stable correspondence between chinese and foreign markings should be at the heart of their approximation judgements, on the basis of which a final determination can be made as to whether there is a potential for confusion about the coexistence of trademarks, in accordance with the general rules and steps of the approximation of trademarks。
Ii
Two dimensions of “stable correspondence”
The determination of a stable correspondence between the chinese logo and the foreign emblem usually includes a reciprocal review of the constituent elements of the symbol and a reciprocal review of the use of the symbol, which interact and interact with each other and require case-by-case judgement。
(i) correlation of constituent elements of marking
The external marker itself is judged by the fact that, in practice, the main focus is on the examination of correspondence in terms of its call, meaning, etc., and the correspondence with the font element is less common. With regard to the specific criteria, the level of awareness and awareness of the public concerned in the country should be taken into account. In the “eternal seal” trademark dispute case (hereinafter referred to as the “eternal seal”), the supreme people's court stated that it was necessary to consider the level of awareness and capacity of the public concerned with respect to the english-language trademark to determine whether the “eternal seal” and the quoted trademark “forevermark” constituted a similarity. How to determine the level of awareness and capacity should be considered in terms of the level of awareness of english language among the relevant public in the country, and the degree of common use of the english trademark term itself, as cited. Because of the degree of awareness and level of common english terminology among the public concerned in our country, it is easy to identify “forevermark” as “forever mark”, in accordance with the usual spelling habits. At the same time, “forever” and “mark” are commonly used terms in english that are more frequent. Thus, where the chinese meaning of the quoted trademark is fairly well understood by the public concerned in our country, it is easy to link the chinese equivalent of the quoted trademark to the quoted trademark. In the case concerning the dismissal of the application for review of the “black skirt” trademark, the court held that, since the quoted “la petite robe noire” trademark was french, the general consumer in our country was not sufficiently familiar with french and that the vast majority of consumers were not aware of its chinese meaning and would therefore not correspond to the chinese “black skirt”. Thus, the level and level of awareness of the public concerned is the primary consideration in determining the similarity of the medium foreign markings. As english is usually a compulsory subject in our basic education cycle and our foreign language education is predominantly english, the public awareness of english symbols in our country should be higher than that of other languages. As a result, the level and level of awareness of the relevant public varies, depending on whether the foreign language is marked as english or non-english, and the foreign language is commonly or very well used。
In practice, foreign symbols include both foreign symbols with a fixed meaning and presumed markings. In the case of foreign symbols with fixed meanings, since a foreign vocabulary may often have more than one chinese meaning and a chinese meaning may also correspond to more than one foreign vocabulary, an examination of the relativity of meaning does not require that the two be the only pointers in translation, but only if they are able to form a reciprocal response in meaning. In the above-mentioned “eternal seal”, the court ruled that the correspondence and correlation between the meaning of the quoted english trademark and the disputed chinese trademark could be considered in english and chinese, that “forever” had the meaning of “permanent, permanent, frequent and constant”, that “mark” had the meaning of “marks, marks, marks” and that “marks” were often translated into “prints” in the registered chinese-english combination of trademarks and that “forevermarks” could be translated into english and “forevermark”, and that therefore “permanent seals” had a resonance with “forevermark”, which could easily be matched by the public concerned. For presumed foreign symbols, the relevance and correspondence of the public concerned as a result of the proximity of the call is less clear than the correspondence of the meaning, but also has an impact on its counterpart judgement. In the tweet mark objection review, courts of first and second instance found that chinese twitter was very close to the english version of twitter, and concluded that the two had a strong correspondence。
Therefore, the correspondence and relevance of the components of pronunciation, meaning, etc., is one of the important considerations in the review of the correspondence between the symbols of chinese and foreign languages, which requires a comprehensive assessment of the level and extent of knowledge of foreign languages among the relevant public in the country。
(ii) correlation of marking use
With the exception of a trademark application for denial of review of administrative cases, the use of foreign emblems, in particular their corresponding use in chinese, should be the main consideration in determining whether a “stable correspondence” has been created. In general, the visibility of foreign symbols in themselves determines their visibility in chinese, so the examination of their correspondence includes both the visibility of external symbols and their use. In practice, trademark rights holders usually submit extensive evidence of use in this respect, and it is necessary to clarify the criteria for admissibility of the use of evidence。
Definition of the use of subjects. Defines the user of a sign in a chinese foreign language, i. E. The distinction between active use by trademark rights holders or passive use by third parties such as the public concerned, media reports, etc. The so-called “passive use”, such as in the viagra trademark case, in which pfizer pharmaceutical company officially named its new drug “viagra” as “viaco”, but popularly known as “viaco”, in the solo trademark case, sony ericsson was officially translated by sony ericsson into his mobile phone, but popular and media reports referred to it as “sololine”. The view was expressed that trademark law was essentially private law and that, based on the principle of party autonomy, the use of non-mark rights such as the public at large and the media should not be taken into account; and that the principle of equity was violated if trademark rights did not work at all on passive chinese symbols. On the one hand, the passive use of the public in question does not necessarily conflict with the expression of the trademark owner, and it is not appropriate to assume that the passive use by a third party would be contrary to the expression of the rights holder unless, based on the principle of estoppel, the subject of the right cannot obtain the positive benefit of its own explicit denial of the facts. At this stage, on the other hand, the issue of maliciousness in trademarks remains prominent, especially in respect of foreign trademarks that are already well known abroad. Since the passive use of third parties also has an impact on the general perception of the public concerned, such as excluding the examination of passive use situations, there may be a lack of objectivity in the judgement that may lead to a “mixable possibility” and a negative impact on the country's judicial orientation at this stage in curbing the malicious act of mark-taking. Therefore, the view was expressed that there should be a more tolerant approach to the examination of the user, and that the use, normally not contrary to the will of the trademark holder, could be taken into account. The supreme people's court, in its judgment on the approximation of “equity of premises” and “freddie mac”, held that, on the basis of the facts established by the court of first instance, a large number of media had reported “equity of premises” as a chinese translation of “freddie mac” before being challenged by the trademark application, referring to federal lending companies, and that the current commonly used translation name was widely accepted, and that the two were ultimately determined to be similar。
Distinction regarding categories of use. The closeness of trademarks is often accompanied by an examination of their approved categories of goods or services, and the absence of a specific commodity or service to refer to the closeness of trademarks is clearly irrelevant. Similarly, the determination of the use of chinese and foreign symbols should be made in conjunction with specific goods or services. This is emphasized by the fact that, in practice, some of the pre-entitled persons often mix the corresponding use of foreign symbols in one category with the corresponding use in other categories, so that it is necessary to screen and distinguish between the goods or services specifically used by the two. It should be recognized that the so-called “reciprocal use” is necessarily based on the use of a particular commodity or service category. At the same time, it should be noted that the correspondence between chinese and foreign symbols in a particular category of goods or services does not necessarily extend to other categories of goods or services, which should be judged with some caution and on a case-by-case basis. In the case concerning the declaration of the avoidance of the cisco trademark, where the parties argued that the correspondence between the “cisco” and the “sicco” in category 9 could be extended to category 11 commodities, the court held that, since the right holder had not used the “sicco” in category 11, and because there were significant differences between category 9 and category 11 commodities, the court did not accept the parties' claim to continue the correspondence, and ultimately found that the “sicco” and “cisco” in category 11 commodities did not constitute a similarity。
Consideration of other use factors. In addition to the use of subjects, categories of uses, there are a number of factors of use that can be considered on a case-by-case basis, such as mode of use, history of use and duration of use. If, in terms of the mode of use, the trademark rights holder shares in the commercial activity the use of its foreign symbols on a permanent and continuous basis, the level of awareness and effectiveness of the respective public counterparts will be significantly higher than that of individual use. Moreover, in view of the geographical nature of intellectual property rights, some foreign rights holders enter the chinese market initially through domestic agents, who, in order to facilitate promotion or marketing, usually choose, use and register a chinese name corresponding to the foreign trademark. In the event of a subsequent trademark dispute between the parties, factors of that particular business history may also influence the examination of the counterparty. Moreover, the examination of the chinese and foreign markings for the duration of their use cannot be ignored. The historical complexity of commercial activities and the continued evolution of the dominant and objective status of the use of trademarks by market subjects make it necessary to pay attention to the problems during their use. In the case concerning the declaration of the invalidity of the “sat” trademark, in which the existence of a business cooperation between the parties had led the public concerned to think in correspondence between the “sat” and the “zapi”, the court ruled that, according to the evidence in the case, the beijing saa company had used the “sat” and the “superec” in commercial activities after the termination of the partnership, while the zapi company had not used the “sat” in commercial activities after the termination of the partnership, and that the distinction between the two parties in the actual market had lasted for a long time, objectively weakening the existing public perception and significantly eliminating the possibility of confusion. A negative evaluation of the correspondence between the “sace” and “zapi” prior to the date of the application for the trademark was accordingly made, and the final judgement was that the two did not constitute a similar trademark。
In summary, in cases involving the proximate determination of a trademark, the determination of a stable correspondence between a symbol of a chinese and a foreign language should be the core and basis of its determination, which is generally taken in a broader and inclusive manner in existing judicial practice. On the other hand, the examination of a stable correspondence between a symbol in a chinese and foreign language should be based on a specific analysis of the circumstances of the individual's case, both in terms of the correspondence of the constituent elements of the symbol and in terms of its use. At the same time, it should also be noted that both the reciprocal review of the constituent elements of the logo and the reciprocal review of its use are ultimately judged by the general awareness of the public concerned as to whether or not the correspondence is widely known to the public concerned. On that basis, the general rule of the approximation of trademarks could be re-applyed to ultimately determine whether the public concerned would cause confusion。
Comment
Liu qinghui: criteria for judging the similarity of our trademarks to commodities, in intellectual property, no. 4, 2013。
See administrative decision no. 4955 of the beijing intellectual property court (2016) at the beginning of the 73rd line of kyoto, and administrative decision no. 601 of the beijing higher people's court (2018) at the end of the row。
See supreme people's court (2016) supreme decree no. 34。
See administrative decision no. 49 of the supreme people's court (2014)。
See administrative decision no. 168 of the beijing intellectual property court (2014)。
See administrative decision no. 682 of the beijing intellectual property court (2015) and administrative decision no. 522 of the beijing higher people's court (2019)。
See the beijing higher people's court (20007), civil decision no. 1685 of the supreme people's court。
See administrative judgement no. 717 of the beijing high people's court (2008)。
Tao, the approximation of foreign trade marks in administrative litigation of trade marks, china marks, no. 2 of 2017。
See supreme people's court (2016) supreme law, administrative decision no. 376。
See administrative decision no. 442 of the beijing intellectual property court (2018), p. 73。
See administrative decision no. 11090 of the beijing intellectual property court (2018), p. 73。
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