First-instance case number: (2016) Jing 73 Xing Chu No. 6871

Second instance case number:(2018) Jing 73 Xing Zhong No. 137

As one of the absolute reasons for prohibiting the use and registration of trademarks, Article 10, paragraph 1, item 8 of the Trademark Law in 2001 stipulates: "Signs that are harmful to socialist morality or have other adverse effects shall not be used as trademarks." However, because the provisions of this clause are too general and abstract, there are some differences in specific application.

Whether the disputed trademark has "other adverse effects" should be considered from four aspects: judgment subject, judgment time, judgment standard of the meaning and burden of proof.

Case introduction

Appellant (plaintiff in the first instance): Shanghai Junke Trading Co., Ltd. (referred to as Junke Company)

Appellee (defendant in the first instance): CNIPA

Third-person in the original trial: Yao Hongjun

The trademark No.8954893 "MLGB" was applied for registration by Junke Company on December 15, 2010, and approved for registration on December 28, 2011, and was approved for use in the 25th category of clothing, wedding dresses and other commodities. On October 9, 2015, Yao Hongjun filed an application for trademark invalidation with the Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board), arguing that trademark litigation was easy to remind people of uncivilized language, harmful to socialist morality and has adverse effects.

On November 9, 2016, the Trademark Review and Adjudication Board made a ruling that the public could easily recognize "MLGB" as an uncivilized term. According to Article 10, paragraph 1, item 8 of the Trademark Law of the People's Republic of China amended in 2001 (hereinafter referred to as the Trademark Law of 2001), it ruled that the trademark in this dispute should be declared invalid. Junke Company refused to accept the lawsuit, filed a lawsuit with the court of first instance, and requested to revoke the ruling of the accused, and the Trademark Review and Adjudication Board make a new ruling.

Majority opinion of the collegiate bench of the court of first instance held that the disputed trademark had adverse effects and ruled that Junke Company's claim was rejected. Junke Company refused to accept the first-instance judgment and filed an appeal.

The second instance court held that whether the disputed trademark has "other adverse effects" should be considered from four aspects: judgment subject, judgment time, judgment standard of the meaning and burden of proof. In the case that there are already specific groups in the network environment that refer to "MLGB" as having a negative meaning, and combined with the situation where Junke Company applied for "caonima" and other trademarks when applying for the disputed trademark, it is determined that the registration of the disputed trademark violates the provisions of Article 10, paragraph 1, item 8 of the Trademark Law of 2001. Accordingly, the court of second instance rejected the appeal and upheld the original judgment.

Typical meaning

Article 10, paragraph 1, item 8 of Trademark Law in 2001, as one of the absolute reasons for prohibiting the use and registration of trademarks, is too general and abstract, so there are certain differences in specific application.

The disputed trademark reflects to a certain extent the current situation that the negative language appearing in the current network environment enter the field of trademark registration. The court of second instance fully considered the legislative purpose, aim and historical evolution of this clause, refined the four factors in the specific application of "other adverse effects" in this clause, and determined that the disputed trademark itself has a negative meaning, low style and adverse effects.

This case received great attention from society during the trial and after case closed, and the judgment result won wide acclaim from the society. The trial idea of the second instance court provides a useful reference for the unification of legal application in such cases, and gives full play to the judicial function of inheriting mainstream cultural consciousness and guiding positive values through the trial of this case.