Unitalen Successfully Represents Hayao Group No. 6 Pharmacy in Opposition Against Trademark “蓋中蓋”
September 19, 2003Unitalen Attorneys at Law, representing of Hayao Group No. 6 Pharmacy (hereinafter referred to as “the Opponent”), raised an opposition against the trademark “蓋中蓋” (hereinafter referred to as “the opposed trademark”). The trademark had been preliminarily approved by China Trademark Office (CTO) under the State Administration of Industry and Commerce (SAIC) under No. 1542553 and published on Issue 764 of the Trademark Gazette. This registration was sought by Bei’an lubao Co., Ltd, (hereinafter called “the Opposed Party”) based in Heilongjiang Province. CTO accepted the opposition raised by Unitalen, and the opposed party didn’t respond within the required time limit.
The Arguments raised by the Opponent:
The Opponent filed the opposition on grounds that: “蓋中蓋” is an original creation of the Opponent and was first used by the Opponent. After many years of operation and promotion, the trademark “蓋中蓋” has become very well known all over China, indicating a clear connection between the trademark and the Opponent. The opposed trademark “蓋中蓋” in respect of “milk product” in this opposition is absolutely the identical trademark as the Opponent’s prior registered trademark “蓋中蓋” in respect of “medical nutrition food, mineral water”. Since “milk product” and “medical nutrition food, mineral water” are similar products, the use of the Applicant’s trademark can necessarily cause confusion to the general consumers. Moreover, the Applicant’s application contradicts fidelity and credit principle and would constitute serious infringement of the Opponent’s lawful and prior rights.
The Adjudication Made by CTO:
Through investigation it was established that the Opponent had already registered the trademark “蓋中蓋” in several classes in China, including in Class 5 in respect of “troche”, in Class 30 in respect of “non-medical nutrition fluid, non-medical nutrition capsule”, and in Class 32 in respect of “water (beverage), mineral water & etc. ”. “蓋中蓋” is a combination of non-fixation Chinese characters which together have no special meanings. Thus, it’s a distinctive trademark. The Opponent provided copies of the advertisement agreement signed with local TV stations and other advertisement medias in Beijing, Shanxi, etc, and the related invoices to prove that the trademark “蓋中蓋” is well known; the applicant didn’t deny it. Based on this evidence, CTO agreed the prior registered trademark “蓋中蓋” is well known to some extent. The opposed trademark “蓋中蓋” is to be registered in Class 29 in respect of “milk product, milk, milk beverage (milk predominating)”. Although the opposed trademark will be used on different goods in respect to their function and purpose, the use by the Applicant of “蓋中蓋” on the specified goods could likely deceive the public.
Pursuant to the provisions of Article 33 of the Trademark Law, the trademark “蓋中蓋” under preliminary approval No. 1542553 shall not be approved for registration.
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