Fujian High Court: TM nullified by TRAB but pending for court decision is still valid

文章来源: CHINA INTELLECTUAL PROPERTY NEWS
发布时间: 2020/11/5 10:13:00

  What is the legal status of a trademark if it was nullified by the Trademark Review and Adjudication Board (TRAB) but its holder has challenged the decision at a court?  Australia's Rush Rich International Trading Company is the right holder in a case of such nature and a lucky one whose loss of right is deemed not lost at all by Fujian High People's Court.

 

  Rush Rich was authorized to use No.11157214 trademark (trademark in dispute) by owner Dongfangmingri (Jinjiang) I&E Company but would see it declared invalid by the TRAB under the former State Administration for Industry and Commerce. Dongfangmingri then challenged the decision at Beijing IP Court. As of publication, it is still an ongoing case.

 

  During this ongoing trial, Rush Rich found that two branches of Fujian Shunyifeng Commercial Company marked Chinese characters 奔富酒园 on their wine labels without any authorization, and Shenzhen Shunfeng Commercial Company used the characters 奔富which were similar to the trademark in dispute on its wine products.Considering these acts constitute infringements of its trademark right, Rush Rich brought the case to Zhangzhou Intermediate People's Court in Fujian, requesting the Court to order the three defendants to cease infringing its trademark, publish an apology on newspaper and indemnify one million yuan in damages. The three defendants argued that the trademark in dispute was declared invalid by the TRAB and the claim of Rush Rich could not stand in the first place.

 

  The Zhangzhou Court held that the trademark in dispute has been invalid since the date on which the TRAB made the ruling, removing the basis for Rush Rich to file a case. In this connection, the court rejected Rush Rich's claim.

 

  The disgruntled Australian winery appealed to Fujian High People's Court.

 

  After hearing, Fujian High held that Under Article 46 of the Chinese Trademark Law, if neither party has filed an application for re-examination of the invalidation ruling made by the Trademark Office or if neither party has brought a suit to the people's court against the ruling made by the TRAB within the prescribed period, the ruling shall take effect. Considering that the case is hearing, TRAB's decision does not become effective.

 

  In this connection, Fujian High held the trial court wrongly decided that Rush Rich had lost its trademark right and rejected its plea based on that. The case was remanded to the Zhangzhou court for a retrial. As of publication, Rush Rich has withdrawn the lawsuit.(by Cao Huimin)

 

 Editor Jiang Shuo)

 

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