“屈臣氏”商标引发了一场历时5年的纠纷

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Time of issue:2018-02-12 13:46
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(Summary description)企业注销后,其此前申请注册的商标还能否被核准注册?对此,北京市高级人民法院在审理第8778266号“屈臣氏”商标(下称被异议商标)纠纷案中给出了答案。　　近日,北京市高级人民法院公开了其于2017年12月作出的(2017)京行终3370号行政判决书,法院终审判定被异议商标的申请人广东省佛山市南冠陶瓷有限公司(下称南冠公司)于2014年4月21日被注销,其主体资格已经丧失,且尚无证据显示南冠公司在注

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“屈臣氏”商标引发了一场历时5年的纠纷

Categories:最新消息
Author:
Origin:
Time of issue:2018-02-12 13:46
Views:

Information

　　企业注销后,其此前申请注册的商标还能否被核准注册?对此,北京市高级人民法院在审理第8778266号“屈臣氏”商标(下称被异议商标)纠纷案中给出了答案。

　　近日,北京市高级人民法院公开了其于2017年12月作出的(2017)京行终3370号行政判决书,法院终审判定被异议商标的申请人广东省佛山市南冠陶瓷有限公司(下称南冠公司)于2014年4月21日被注销,其主体资格已经丧失,且尚无证据显示南冠公司在注销前办理了被异议商标申请人变更手续,故被异议商标在丧失了申请主体的情况下不应被核准注册。

　　据了解,被异议商标由南冠公司于2010年10月26日向国家工商行政管理总局商标局(下称商标局)提出注册申请,指定使用在瓷砖、非金属地板砖等第19类商品上。2011年10月6日,商标局对被异议商标予以初步审定公告。

　　在被异议商标法定异议期限的最后一天即2012年1月6日,英国屈臣氏企业有限公司(下称屈臣氏公司)针对被异议商标向商标局提出异议申请,主张被异议商标与其在先核准注册于推销业(替他人)等第35类服务上的第774065号“屈臣氏”商标构成使用在类似商品或服务上的近似商标,同时系以不正当手段抢先注册其已经使用并有一定影响的商标,损害了其在先商号权,而且南冠公司申请注册被异议商标违反了诚实守信原则,扰乱了市场经济秩序,有害社会主义道德风尚。

　　经审查,商标局于2013年4月9日作出裁定,认为屈臣氏公司所提异议理由不成立,遂对被异议商标予以核准注册。屈臣氏公司不服,于同年5月3日向国家工商行政管理总局商标评审委员会(下称商评委)申请复审。

　　2014年4月15日,商评委作出复审裁定,对被异议商标予以核准注册。屈臣氏公司不服,继而向北京市第一中级人民法院提起行政诉讼,但其诉讼请求被法院一审判决予以驳回。随后,屈臣氏公司向北京市高级人民法院提起上诉。

　　据悉,在该案二审审理期间,屈臣氏公司提交了南冠公司的企业机读档案登记资料以及企业信用信息公示报告,显示南冠公司于2014年4月21日注销,注销原因为股东、股东会、股东大会决议解散。屈臣氏公司据此主张,南冠公司注销且在注销之前并未对被异议商标进行转让,故被异议商标不应予以注册

　　北京市高级人民法院经审理认为,商标专用权作为一种民事权利,应由具有民事主体资格的主体来享有和行使。屈臣氏公司提交的证据可以证明被异议商标的申请人南冠公司于2014年4月21日被注销,其主体资格已经丧失,且尚无证据显示南冠公司在注销前办理了被异议商标申请人变更手续,故被异议商标在丧失了申请主体的情况下不应被核准注册。

　　据此,法院终审判决撤销一审判决及商评委作出的复审裁定,并判令商评委就屈臣氏公司针对被异议商标提出的异议复审申请重新作出裁定。(王国浩)

　　行家点评

　　刘云佳(北京市盈科律师事务所律师):该案中,商标行政管理部门及法院对于屈臣氏公司的主张均以缺乏事实与法律依据为由未予支持,二审法院最终在结合被异议商标申请人主体身份资格的客观情况下,作出了被异议商标不应被核准注册的判决。

　　我国现行商标法第四条规定:“自然人、法人或者其他组织在生产经营活动中,对其商品或者服务需要取得商标专用权的,应当向商标局申请商标注册。本法有关商品商标的规定,适用于服务商标。”

　　由上述规定可见,商标是应在经营所需情况下申请的,商标专用权作为一种民事权利是应由自然人、法人或其他组织具有主体资格的申请人行使的,商标是应被实际投入使用的。而屈臣氏公司在该案二审诉讼程序中提交的企业机读档案登记资料及企业信用信息公示报告证明,被异议商标申请人作为企业已被注销,其主体资格已经丧失,且暂无证据显示该申请人对于被异议商标以转让或其他程序进行申请人的变更,此种客观情形表明被异议商标申请人已经丧失了主体资格,且被异议商标显然也不具备被他人承继或使用的可能。从遵循我国现行商标法第四条所体现的立法本意,二审法院最终结合上述新事实作出了相应裁判。

　　北京市高级人民法院2014年发布的《关于商标授权确权行政案件的审理指南》中也有类似规定,即申请注册被异议商标的企业被吊销营业执照但未办理注销手续,同时符合以下条件的,可以根据我国现行商标法第四条的规定,对该商标不予核准注册:行政裁决作出时申请注册被异议商标企业的营业执照已经被吊销超过3年;无证据显示被异议商标已被转让或被许可给他人使用;申请注册被异议商标的企业未参加商标评审程序和后续诉讼程序,也未对其企业状况及被异议商标情况作出说明或提出相关主张;被异议商标系对引证商标的复制、摹仿且两者指定使用的商品存在一定关联。根据上述司法意见,在被异议商标申请人企业为吊销未注销或已注销等具体符合的情形时,可以适用我国现行商标法第四条予以规制。

　　新闻来源：http://ip.people.com.cn/n1/2018/0129/c179663-29792542.html

　　本新闻经华讯团队重新编辑整理并添加分析意见。

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