Review Decision about Trademark No. 11492379“FUS ADLER BANTON”for Opposition
Applicant: Yan Bingguang
Agent: Beijing Changli IP Agent Ltd
Original Opponent: Xia Zhaoli
The applicant applied for review on December 8, 2015 to TRAB on the mark “
” of No.11492379 for they disagree with the decision of opposition case of No.0000042687 After We (the board) received the application, in accordance with Article 6 of Trademark Examination Rules, a group had united to process the review, now the trial is done.
The original opponent’s grounds: The opposed mark is similar with No.2009187 “
”in using on similar goods, which would mislead consumers. The act of registering this opposed trademark is an improper act and is clearly malicious. In summary, the original opponent asked to reject the application.
In prior decision made by Trademark Office, the opposed mark is “FUS ADLER BLANTON and device”, designated on “Bicycle, Stroller, etc”. And prior mark is designated on “Land vehicle clutch plate, land vehicle brake disc,etc”. ”ADLER”as the main part of the opposed mark completely same with prior mark. They have similar designated goods, such as “Bicycle, Carrier tricycles”, which is similar in the function, sales channel. This will cause mix or misunderstanding easily. The opposed mark’s other goods “Wheelchair, stroller”have strong distinctiveness, they will not cause misunderstanding. According to relative provisions of Trademark Law and Implementing Regulations of the Trademark Law, the following goods be rejected: Electric tricycle; Delivery tricycles; Electric Bicycle; Bicycle. The other goods will be remained.
The applicant’s grounds: The applicant already submit the cancellation for the reason of non-use for 3 consecutive years to against prior mark, and request to process this case after above cancellation decision to be made. The opposed mark was solely created by applicant. In summary, the applicant require the opposed mark could be registered.
The original opponent didn’t say anything about it.
After trial:
1. The opposed mark was applied on September 14, 2012, designated use on class 12. After publication, it is opposed by opponent. And trademark office made a decision to reject part of goods, only remain “wheelchair, stroller”.
2. A decision had be made on No.W009265 cancellation case, and it is already to be effect.
Above fact could be proved by trademark file.
According two parties’ grounds, the focus about this case is: whether they have similar designated goods, or violate the Trademark Law.
In terms of cited mark had been canceled, thus they don;t have conflict anymore.
Besides, original opponent stated that the opposed mark is malicious, its registration violate the Article 44 of Trademark Law for “a trademark was acquired by fraud or any other improper means”. It’s an absolute strong reason to cancel a mark, cause it’s totally damage public order or interest, or block the order of trademark registration. In this case, above improper behaviors are not exist.
Therefore, the review grounds are effective.
According to Article 35 section 3 of Trademark Law, we give following decision:
The opposed mark will be approved, relative process will transfer to Trademark office.
According to Article 35 of Trademark Law, If original opponent unsatisfied with this decision, he could submit an invalidation to against this mark. The corresponding provisions is Article 44,45 of Trademark Law.