A trademark is the first sign and facade of an operator, and choosing a good trademark is crucial for production and operation. In an industry, some preferred terms have become popular, such as in the baby formula industry, where A2 as a special milk source identifier is eagerly sought after for registration or inclusion in trademarks; in the cookie industry, the crown graphic is widely used. In the cosmetics industry, various "doctor" terms frequently appear in brand names; in the food and fast food industry, the hamburger graphic is also a top consideration. Therefore, the situation of preferred terms in these industries being sought after for registration will inevitably lead to conflicts of trademark rights. It is worth considering whether two trademarks containing the same elements will always be considered as similar trademarks.

Case Summary

Arla Foods Amba is a leading dairy industry company from Denmark, with its products such as milk powder, milk, and cheese gaining a good reputation in the global market.

Arla Foods Amba has carefully designed and applied for applications for their trademarks  and  in Classes 5 and 29, respectively. On December 21, 2021, and January 6, 2022, the National Intellectual Property Administration (CNIPA) preliminarily approved and published the above two trademarks over the designated goods in Classes 5 and 29.

The A2 Milk Company Limited opposed to the trademarks filed by Arla Foods Amba on the grounds that these marks were similar to its previously registered trademarks for similar goods,  

The CNIPA made a decision after review, determining that the two parties' trademarks did not constitute "similar trademarks used on similar goods" as stipulated in Article 30 of the China Trademark Law.

Legal Analysis

Article 30 of the China Trademark Law states: "Where a trademark applied for registration is identical with or similar to a trademark registered or preliminarily approved for registration by another party for the same kind of goods or similar goods and does not comply with the relevant provisions of this Law, the Trademark Office shall reject the application and shall not publish it."

According to the "Trademark Examination and Review Guidelines" formulated by the CNIPA, similar trademarks refers to the situations where constituent elements of trademarks such as text, graphics, letters, numbers, three-dimensional signs, color combinations, and sounds having certain differences in pronunciation, visual appearance, meaning, or arrangement order, but the overall differences are not significant.  Similarity comparison of graphic trademarks should mainly consider composition, appearance, and coloring, etc..

In addition, according to the examination standard, trademarks consisting of one or two non-ordinary foreign letters with clearly different shapes that make the overall trademark distinctly different and not easily confused by the relevant public with the source of goods or services shall not be considered as similar trademarks. For example,  

In this case, it is easy to see that both trademarks contain the A2 wording. However, A2 is the name of protein milk or dairy products, also known as A2 beta-casein. Milk powder containing A2-type protein is easier for the human body to absorb, can reduce infants' digestive reactions such as bloating, diarrhea, and abdominal pain, and can effectively increase infant nutrition and enhance resistance. Therefore, the use of A2 in brands of milk powder and dairy products is very common and is a preferred term in the dairy industry. The pure A2 element used in products such as infant formula also does not have the distinctive features that a trademark should have. It can be seen that the A2 combination as part of a trademark should not be monopolized by a single company, as this would be unfair to other practitioners in the industry.

Two trademarks applied for by Arla Foods Amba, although containing the A2 wording, have strong design details that make their trademarks highly original and distinctive. Although both trademarks contain the A2 letter and number combination, they are significantly different in design style, letterform, and overall visual effect, so the trademarks of both parties do not constitute similar trademarks used on similar goods, and their coexistence should not cause consumer confusion.

In the stage of trademark creation, choosing a suitable registration object, designing it in a novel way, and cleverly combining it to include important components while distinguishing it from other trademarks are crucial for the trademark owner. How to obtain trademark registration at the lowest cost is the most desired result for trademark applicants. Therefore, the author also believes that before applying for trademark registration and using it, conducting necessary trademark searches and designing and choosing a proper mark that can be distinguishable from previously registered trademarks will help to streamline the trademark registration process.