2022 Typical Case of Trademark Objection and Evaluation, No. 43541282 "Huamanlou" Trademark Disagreement Proposal

typical meaning:

The name of the work and the name of the role can be protected as a prior interest, but it is necessary to protect both the prior legitimate rights and interests and to prevent undue restrictions on the public's freedom to use elements of the public domain.

1.ControversyTrademark

1.Dissent:Zheng Xiaolong.

2.DissentedPerson: Sichuan Pudu Tea Co., Ltd..
3. Registration number: 43541282.
4Date of application: 2020Year01Month03Day.
5.Announcement of preliminary examinationDate:2021Year03Month13Day.

6. Signs:(SectionTrademark No. 43541282)
7. Approved commodities for use (art.30class): black tea;barley tea;yellow tea;Tea;A flower or leaf used as a substitute for tea.;Black Tea;white tea;Green Tea;Oolong Tea;Mint tea.

2.facts and reasons

Main reasons of the dissenter:"Huamanlou" is the name of the character in the original martial arts novel "Legend of Lu Xiaofeng" by his father, Mr. Gu Long. The registration of the opposed trademark violates the provisions of Article 32 of the Trademark Law that "the existing prior rights of others shall not be damaged.

Respondent's reasons:"Huamanlou" is not the original creation of the dissident, and the dissident has no right to hinder the reasonable use of others. The evidence provided by the dissident is not sufficient to prove that the title of the character of the work he claims has a high reputation in the field of tea. "Hua Man Lou" means full of flowers. As a trademark, it is registered and used on tea and other commodities to convey product characteristics.

• Decisionand decision

The Trademark Office of the State Intellectual Property Office (hereinafter referred to as the Trademark Office) believes that,Because the name of the character cannot independently express the thoughts and feelings of the work, does not have the elements of the work in the legal sense, and does not belong to the object protected by the copyright law, the application for registration of the opposed trademark does not infringe the copyright of Mr. Gulong's novels. in addition, the evidence provided by the dissented person shows that before mr. gu long created "the legend of lu xiaofeng,The word "Huamanlou" has appeared in the works of poets in the Tang and Song dynasties, and there are also songs and essays named "Huamanlou" in contemporary times. Therefore, in public cognition, "Huamanlou" should not only point to the character in the Legend of Lu Xiaofeng, and the evidence provided by the dissident is not enough to prove that the objected trademark is used on tea and other commodities, it is easy to cause the relevant public to mistakenly believe that there is a specific connection between the goods identified by the relevant public and the name of the "Huamanlou" role, thus crowding out the potential trading opportunities and commercial value of the dissenters..Therefore, with regard to the claim of the opponent that the disputed trademark damages the prior rights and interests of the character name in his well-known work,TrademarkDesk does not supportThe registration of the opposed trademark is granted.

4Case analysis

With the development of the market,The emergence of a large number of literary and artistic works, including film and television drama, animation, literatureWorksgames, etc. The role images created by these works are often deeply rooted and widely circulated, and some work names are themselves role names, such"Big Head Son and Small Head Dad", "Miyue Biography";Some works name is the embodiment of the content and spiritual character, such"Glory of the King", "Three Kingdoms"; and some are unique names in the work, such"Sunflower Treasure Book". In the traditional intellectual property law, the names of these works are mostly due to originality, the integrity of the expression of ideas and other reasons, it is difficult to constitute copyright works, and it is difficult to prohibit the legitimate use of others. However, the names of these well-known works are themselves the objects sought after by fans. Objectively, they can also become commercial logos, play a role in promoting related products and services, and then bring considerable commercial benefits to the right holders.

Therefore,leads to a new concept"Right to Commercialization",Commercialization interests arise fromThe protection demand of "role image and name" is the right of publicity (RightofPublicity) derived from the right of privacy in American law. The World Intellectual Property Organization defines merchandising rights as: "In order to meet the needs of specific customers and enable customers to purchase such goods or require such services based on their affinity with the role, the creator of the fictional role or natural person and one or more The legal third person processes or secondarily uses the substantive personality characteristics of the role on different goods or services." China's law has not yet clearly defined the rights and interests of commercialization.

But...According to Article 18 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Concerning the Authorization and Confirmation of Trademarks, prior rights include the civil rights or other legitimate rights and interests that should be protected before the date of application for the disputed trademark. The second paragraph of Article 22 stipulates that for works within the copyright protection period, if the name of the work, the name of the role in the work, etc. have a high reputation, the use of it as a trademark on the relevant goods may easily cause the relevant public to mistakenly believe that it has passed The right holder's permission or has a specific connection with the right holder, and the people's court will support it. For the first time, the judicial interpretation of trademark authorization and confirmation makes it clear at the level of judicial interpretation that commercialized rights and interests can be protected as prior rights and interests..

And the role in the work and the name of the work its commercialization rights are not unlimited.groundBig.First of all,The work itself is limited.,Definition of Works in Copyright LawYesIntellectual achievements in the fields of literature, art and science that are original and can be expressed in a certain form. The so-called originality for the work must have the conditions,Refers to the author of the work.independent thinkingand labor characteristics. That is, in the selection and arrangement of words, notes, colors, shapes and other aspects of the creation rather than plagiarism or plagiarism of others. In a nutshell,Works for their own original.Secondly,JustIn reality review,Will consider the following points:

1) Name of work/Roles in the WorksHave a certain visibility before the application for registration of the trademark in dispute;

2) Disputed trademark logo and work name/Roles in the Worksthe same or similar;

3) The applicant for the registration of the trademark in dispute is subjectively malicious;

4) The goods designated for use by the disputed trademark belong to the name of the previous work/Roles in the WorksThe scope of visibility can easily lead the relevant public to mistakenly believe that it has the permission of the owner of the previous work or has a specific connection with it.

Return to the case.,“Hua man Lou"As early as the Tang and Song poets appeared in the works,There are also contemporarySongs and essays in the name of "Hua Man Lou",The degree of originality is lower than the original name.;SecondlyWhen judging whether the name of a work has a certain popularity, factors such as the mode of dissemination of the work, the breadth of publicity and the time of publicity should usually be considered. Under normal circumstances, commercial logos need a period of publicity or use to gain popularity, but in the network environment, the time and cost of network communication and publicity are reduced, and the judgment of the popularity of the work should be comprehensively examined.

Consider the characteristics of the work, the law of the line and the operation of the industry and other factors.“Hua man Lou"Currently only partially viewed in literature and film and television.byknown..Again,Goods designated for use by the disputed trademarkwithName of Prior Work/Roles in the WorksScope of visibilitydegree of relevance,“Hua man LouNo specific connection with "tea" commodities.Above,The Trademark Office made a decision to reduce the right to commercialize the role in the work..

AlthoughThe name of the work and the name of the role can be protected as a prior interest, but it is necessary to protect both the prior legitimate rights and interests and to prevent undue restrictions on the public's freedom to use elements of the public domain.Restrictions on prior interests in work names and character names can effectively preventMarket operators use these words as business marks,AvoidingThe public resources of Chinese characters have been greatly reduced,CauseThe Dilemma of Market Operation Subject Without Name.

Sure.,in judicial practiceAlsoThere are constantly cases of maliciously registering the names and role images of other people's well-known works into trademarks, which damages the interests of the right holders of the works, confuses the cognition of consumers, and disturbs the order of trademark registration.Therefore,Businesses or individuals need to remain commercially vigilant,Avoid malicious squatting,Do a good job of trademark monitoring,nip in the bud.