ANDU Represented Administrative Dispute Case of Trademark Refusal Appeal of Trademark No.10528311 applied by GUJING DISTILLERY COMPANY and Won the Final Appeal

Anhui Gujing Distillery Co., Ltd. and the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (TRAB) have filed an administrative dispute case ontrademark refusal appeal for the mark No. 10528311. On May 16, 2016, ANDU received the final judgment of victory from the Beijing Higher People's Court.

Case Introduction

On February 24, 2012, Anhui Gujing Distillery Co., Ltd. filed an application for registration of trademark No. 10528311 (as shown in the figure) with the Trademark Office of the State Administration for Industry and Commerce, designating the goods in Class 33. After examination, the trademark Office made a decision to reject the registration application.

On April 15, 2014, GujingDistillery Company submitted a review application to the TRAB. After examination by the TRAB, it was found that the "dragon" pattern can only appear as the background of the "wine bottle" pattern. The figure of "wine bottle" can be recognized as a prominent part of the trademark application, while the use of "wine bottle" in goods such as "spirits" lacks distinctiveness, which constitutes the situation stipulated in Article 11, Paragraph 1 (1) and (3) of the Trademark Law. On December 25, 2014, the TRAB made decision No. 112491 of the Shang Ping Zi [2014]: The application for trademark registration on the reviewed goods was rejected.

Gujing Distillery Company expressed dissatisfaction with the decision and appealed to the Beijing Intellectual Property Court. It is pointed out that the ruling No. 112491 of TRAB found that the facts were incorrect and the application of law was incorrect. The dragon pattern is an integral part of the applied trademark logo, and should not be considered as the background of the wine bottle logo. Instead, the dragon pattern and the wine bottle should be judged as a whole. When consumers see the applied mark, they will not only recognize it as a single wine bottle logo, but will recognize the applied mark as a whole as a trademark, Therefore, applying for a trademark has the significance of distinguishing the source of goods. The Beijing Intellectual Property Court supported the factual reasons and legal basis of GujingDistillery Company and made a judgment on July 17, 2015, revoking ruling No. 112491 made bythe TRAB and making a new decision on the review application of GujingDistilleryCompany.

The TRAB dissatisfied with the original judgment and appeal to the Beijing Higher People's Court, requesting the revocation of the original judgment and upholding its ruling No. 112491. The reason for the appeal is that the trademark applied for is a three-dimensional wine bottle shape surrounded by a dragon pattern. The general public will first recognize the wine bottle shape when applying general attention, making it easy to recognize the dragon pattern as a decorative background. Applying for a trademark belongs to the three-dimensional packaging and decoration design of a product, which is difficult to indicate the source of the product to consumers and does not have significant characteristics.

Focus of Controversy

Whether the applied mark has distinctive characteristics.

Court Judgement

After hearing, the Beijing Higher People's Court held thatthe appliedmark consists of a dragon pattern, the appearance of the wine bottle, and the text on the wine bottle. It is an ordinary combination of graphics and text trademark, not a three-dimensional trademark. Overall, although the wine bottle pattern occupies a prominent position in the center of the applied mark, the dragon pattern also surrounds the wine bottle and can be recognized by consumers, From the perspective of the applied mark as a whole, it is difficult to determine that it is the three-dimensional outer packaging decoration design of the designated wine product container. Therefore, it is not inappropriate to determine that the applied mark has significant characteristics in the original judgment.

On May 5, 2016, the Beijing Higher People's Court made a judgment of (2015) Gao Xing (Zhi) Zhong Zi No. 3880, that is rejecting the appeal and upholding the original judgment.

Lawyer Ma Xingzhou of ANDU represented the final lawsuit in this case.