Beijing Higher People's Court
Administrative Judgement
(2019) 5437
The appellant (the plaintiff in the first trial) is Hubei Enwei Pharmaceutical Co, LTD., room 1909-1913, 19th floor, Building A, Longan Ganghui Town, No. 38 Minyuan Road, East Lake Development Zone, Wuhan City, Hubei Province.
The appellee (the defendant in the first trial) is National Intellectual Property Administration (CNIPA), No.6, West Tucheng Road, Jimen Bridge, Haidian District, Beijing.
The former Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board), on the grounds that the registration of the trademark litigation constitutes the circumstances referred to in Article 28 of the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law of 2001) as amended on October 27, 2001, making a ruling that the trademark litigation shall be declared invalid.
In this case, the trademark litigation is "羚悦".The cited trademark is composed of the Chinese "羚锐", the spelling "LINGNRUI" and the graphics, in which the Chinese "羚锐" is one of the significant identification parts and the main reading part of the cited trademark. Compared with the significant recognition part and the main reading part of the cited trademark "羚锐", the trademark litigation "羚悦" is similar in the composition and pronunciation of the words, which has constituted the similar mark. If the trademark litigation and the cited trademark are used together on the same or similar commodity mentioned above, it is easy to cause the relevant public to confuse and misidentify the source of the commodity. The evidence submitted by Enwei Company is not enough to prove that the trademark litigation has a high reputation after long-term use and can be distinguished from the cited trademark without causing confusion and misidentification of the relevant public. The determination in the ruling and the original judgment that the trademark litigation and the cited trademark constitute a similar trademark used on the same or similar goods is correct. The court does not support any of Enwei's reasons for appeal.
