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        1. Beijing High: TM use on medical devices fails test of actual use

          文章來源: CHINA INTELLECTUAL PROPERTY NEWS
          發布時間: 2021/2/3 14:02:00

            Beijing High People's Court recently made a final judgment on the trademark dispute over No.9945050 "MOPIDICK" trademark (trademark in dispute), holding that the evidence submitted by the Japan-based Ikeda Mohando Co., Ltd. could not prove the trademark in dispute was in actual and effective commercial use on certified goods from January 6, 2014 to January 5, 2017 (the designated period)。


            On September 8, 2011, the trademark in dispute was filed for registration by Ikeda Mohando to the Trademark Office (TMO)  under the former State Administration for Industry and Commerce (SAIC) and was certified to be used on Class 10 goods including teething rings, medical equipment and instruments on December 7, 2012.


            On January 6, 2017, a person surnamed Pan requested the TMO to cancel the trademark in dispute for it had not been in actual use for three consecutive years. After examination, the TMO cancelled the trademark in dispute.


            On October 9, 2017, Ikeda Mohando lodged a review request to SAIC's Trademark Review and Adjudication Board (TRAB) with evidence including sales and promotional materials to prove the trademark in dispute was used on the certified goods during the designated period.


            The TRAB held that the overseas sales and promotional materials submitted by Ikeda Mohando could not prove the trademark in dispute's use in China. In addition, the online sales and promotional evidence only involved goods like anti-itching liquids, in absence of the certified goods. Therefore, the TRAB made the review decision and revoked the trademark in dispute.


            Disgruntled with the TRAB ruling, Ikeda Mohando then brought the case to Beijing IP Court.


            However, Beijing IP Court did not buy the claim, holding that existing evidence could not prove that Ikeda Mohando had performed actual and effective commercial use of the trademark in dispute on certified goods during the designated period.


            Unwilling to move on, Ikeda Mohando then appealed to Beijing High People's Court, claiming that its evidence was sufficient to prove the trademark in dispute was used on goods including medical antipyretic patches during the designated period. MOPIDICK's liquids belong to Class 5 medicines for human purposes and its packages belong to Class 10 smear-type applicator goods. Ikeda Mohando's continuous investment on the goods using the trademark in dispute into market during and after the designated period, had shown its clear and true intention to use the trademark in dispute. Therefore, the trademark in dispute should be upheld for registration.


            However, Beijing High did not see it that way, holding that although Ikeda Mohando had made the claim MOPIDICK's bottle is the container of anti-itching liquids, it did not submit the evidence supporting the bottle was sold separately as a smear-type applicator. The claim that MOPIDICK's packages belong to Class 10 smear-type applicator goods is inconsistent with common sense. That is, existing evidence could not prove that Ikeda Mohando had made use of the trademark on goods including medical equipment and instruments during the designated period. In conclusion, Beijing High revoked Ikeda Mohando's appeal and upheld the first-instance judgment.(by Wang Jing)



          (Editor Li Xingyi)


          (All contents of this newspaper may not be reproduced or used without express permission)

          主辦單位:中國知識產權報社 未經許可不得復制
          ICP備案編號:京ICP備08103642號-2
          欧美人与禽交ZOZO

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