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Successful opposition action against the “House & Garden” mark
date: 2019-01-10

Agriculture is an important part of the Chinese economy, and food plays an important role in Chinese history. At the same time, agricultural chemicals and  fertilizers also affect our daily life, if trademark is registered improperly over these goods, it may lead to the abuse of trademark and then affect the safety of the foods we consume daily. House & Garden, Inc. is a company from USA and is engaged in provisions of agricultural chemicals.  It has acquired high reputation and influence among Chinese consumers with its high-quality products. However, as House & Garden is getting famous, their mark is becoming target of some trademark squatters over goods “Fertilizers”. House & Garden won in the opposition action against a published mark.

Abstract

Kangxin Partners, P.C., acting on behalf of House & Garden, Inc. (“the opponent” hereunder), filed an opposition action against the trademark “1547102693510.png” (No. 19642486) (“the opposed mark” hereunder) on August 11, 2017, mainly claiming that registration of the opposed mark is a similar mark to the cited mark, the goods of the two marks has strong connections, the cited mark has gained certain reputation in China, and thus use and registration of the opposed mark may cause confusion among the relevant consumers.  The opposed mark and the cited mark are similar marks over similar goods.  The opposition was filed mainly based on Articles 7, 10.1.7, 30, and 44 of China Trademark Law.  After examination, the CTMO issued the decision that the opposed mark should not be approved for registration.

Background

Kangxin Partners, P.C., acting on behalf of House & Garden, Inc. (“the opponent” hereunder), filed an opposition action against the trademark “1547102710476.png” (No. 19642486) (“the opposed mark” hereunder) on August 11, 2017, mainly arguing that the application of the opposed mark violates Articles 10.1.7 and 30 of China Trademark Law.

Below are details of the opposed mark and the cited mark:

Key Points

We mainly argued that 1) registration and use of the opposed mark may cause confusion among the relevant consumers; 2) registration and use of the opposed mark violates the principles of good faith on the basis of Articles 7 and 30 of the China Trademark Law:

1.    The opposed mark is similar to the cited mark over the similar goods.  The opposed mark is same to the cited mark 1547102808031.png (IR No. 854470).  The designated items “chemical fertilizer, etc.” have strong connections with those of the cited mark “agriculture chemicals, electric.”  Thus, the opposed mark constitutes a similar mark over similar goods with the cited mark.

2.    The opponent is the real owner of the “House & Garden” mark.  The cited mark has acquired high reputation through long-term use and wide promotion. 

3.    Registration and use of the opposed mark violate principles of good faith and breach the legislative spirit of China Trademark Law which prohibits registering marks through deceptive or improper means.  The opposed mark is same with the cited mark, which is hard to believe that the opposed mark is originally created by the opposing party.  It is obvious that the opposed mark copied the cited mark and the opposing party intends to gain improper benefits.

Conclusion

On August 10, 2018, the CTMO issued the decision, holding that

The opponent’s cited mark has strong originally and distinctiveness, the words and device of the opposed mark are identical with those of the cited mark, and the overall appearance of the marks are also similar.  The submitted evidence can prove the certain reputation of the opponent’s cited mark1547102808031.png in China.  Thus, registration of the opposed mark will easily confuse the relevant consumers regarding the source of goods. 

Thus, the opposed trademark was rejected for registration.


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