Through undertaking assorted to main unit, OK and medley into piggy admire all sorts of modelling such as strange, car, grab, this is in recent years very popular children toy of beneficial wisdom building blocks " clever club " . However, whether do its make the current name of product of toy of this kind of building blocks, first instance, 2 careful and rehear court and branch of brand administration director all gave out oneself view, recently, the brand tort suit that this has last a period of time 3 years comes to an end eventually.
Because think Zhejiang saves fine horse of golden China city to amount to box to include limited company (next weighing that fine horse amounts to a company) in its production, sale contain " clever club " the 13869740th when the product of joining together building blocks of model of written characters was suspected of encroaching him hold " clever marvellous + Congmingbang, some flies to building of person of trade mark right to sue its to Zhejiang court of people of city of province justice black (next weighing justice black court) , and pecuniary loss of claim for compensation 1.36 million yuan. Court of first instance thinks via cognizance, "Clever club " make goods current name, reject the lawsuit that Lou Mou flies to to request then. Lou Mou flies refuse to obey, save court of intermediate people of golden China city to Zhejiang (next weighing Jin Hua quadrangle) mention appeal, 2 careful maintain golden China quadrangle " clever club " do not make current name, adjudicate 60 thousand yuan to fine horse amounts to a company to compensate for accuser. Fine horse amounts to a company to refuse to obey 2 careful court decision, save senior people court to Zhejiang (next weighing that Zhejiang is tall courtyard) application rehear. During rehear, former state is versed in commercial firm politics manages total bureau brand to evaluate committee (next commissioners weighing business) declare controversy brand is invalid. Subsequently first instance of cancel of Zhejiang tall courtyard, 2 careful adjudicate, cognizance fine horse amounts to a company to did not form brand tort.
Popular toy causes dispute
On June 14, 2016, court of black of flying Xiang Yi sues Lou Mou say, its are the person of trade mark right of controversy brand, this brand is at was being registered to use by approve on March 7, 2015 on the commodity such as the 28th kind of toy. The name that fine horse amounts to a company to be sold on its net inn is " club of clever building blocks is plastic go all out insert big grain beneficial wisdom spells building blocks of children of outfit nursery school " product, because was used without accredit " clever club " model of written characters, relevant behavior is suspected of those who make pair of controversy trade mark right encroaching, request a court to sentence your the accused to suspend brand tort action then, recoup pecuniary loss 1.36 million yuan.
Sue to what Lou Mou flies, fine horse amounts to a company not to grant to approbate, when Wang Yanjun of partner of office of attorney of its representative lawyer, Zhejiang double fact is accepting Chinese intellectual property to sign up for a reporter to interview, express, above all, controversy brand is mixed before application is registered before be being registered permissibly, from the commodity origin, person that sell, consumer (commodity buys the home) and the broad children of the person that use as commodity is right " clever club " cognitive angle can is informed, "Clever club " the toy of children building blocks that serves as a kind to introduce from abroad, in our country general already by social community place witting and use, "Clever club " had become can point to era the name of commodity of a kind of toy, ought to hold this general title that calls established by usage. Next, accuser will exist on the market and use and be registered to be brand by the product name that the public recognizes, have violate honest credence principle, its undertake big range thought fors the time being, it is the behavior that abuses brand dimension power. Again, just when use product name,fine horse amounts to a company is, did not form tort.
The one large central issue of this case is " clever club " the current name that whether is product of tort be appealinged to, to this, justice black court thinks via cognizance, the sheet that this case is appealed to to tort produces strain to make all sorts of appearance with diverse line, be like a form, quadrate, circle, five-pointed star form, the sheet with different repass assorted construction gives different appearance. According to the evidence that the accused provides, from the point of the angle of relevant public, this product begins to appear on the network from 2009, netizen " thriving " say for " clever club " . Later, the relevant personnel such as teacher of many parent, nursery school, elementary school teacher passes website of guest of sina small gain, rich, video to upload video, a variety of forms such as PPT file, documentation upload in Baidu library, it is to this product name " clever club " . Additional, look from him accuser to the appellation of this product, before its are applying for to register controversy trademark, namely on January 23, 2014, still referred with product of tort be appealinged to among them the outward appearance with a same fittings designs patent application, the name that its define this product is " toy (clever club) " . Accordingly, the relevant consumer, person that sell and him accuser, right product of tort be appealinged to all appellation is " clever club " , its show era is clear, accord with " relevant public thinks some name can point to era generally of a kind of commodity " condition, "Clever club " fasten a kind of joining together kind the current name of building blocks toy.
Accordingly, court of first instance thinks " clever club " make goods current name, reject the lawsuit that Lou Mou flies to to request then.
2 adjudgement form tort definitely
After first instance adjudicates, lou Mou flies refuse to obey, to Jin Hua quadrangle mentions appeal. Some flying appeal weighs the building, court of first instance is described without the in any way " clever club " connotation and extension, also did not say to be clear about " clever club " specific what to point to; From the point of existing evidence, cannot maintain " clever club " name enough enclothes all relevant public; In the content that court of first instance finds out, originate for the most part network, form time to cannot decide, although show on the network time, also wait at the accredit time of appellant registered trade mark behindhand.
On December 20, 2016, golden China quadrangle undertook publicity sessional cognizance to this appeal record, made 2 careful adjudicate on March 27, 2017. Jin Hua thinks after quadrangle classics cognizance, above all, fine horse amounts to a company notarial on the network intercept the content such as several rich guest, documentation and video drafts a proof " clever club " the name that regards children as beneficial wisdom toy is approbated by broad teacher and parent place, but the content on the network is deficient in stability, and the individual point of view that represents promulgator only commonly, extensive sex, authenticity is far not as good as media of the professional the press of relevant domain, news, this evidence can not represent reason relevant public is right " clever club " the general acknowledge of the name.
Next, fine horse amounts to company general " clever club " with " building blocks " union undertakes searching, be equivalent to be restricted to shrink in " building blocks " in searching a result, search further " clever club " , reason cannot be maintained with this " clever club " one word points to this to search a result. Although be below afore-mentioned conditions, the court is in the search result of article of notarial deed Han and Japanese, discover not as same as product of this tort be accusinged product, reason court does not grant to collect a letter to this evidence.
Finally, although Lou Mou flies will " clever club " the name that makes the exterior design patent application with Yujidi, but the trade name that the brand that this evidence can not prove to Lou Mou flies to know perfectly well or should know its to apply for to register is the established by usage inside partial section says.
Accordingly, the evidence that golden China quadrangle maintains fine horse to amount to a company to offer can't prove " clever club " the current name that is product of tort be accusinged, fine horse amounts to company tort to hold water, compensate for Lou Mou flying pecuniary loss to wait for 60 thousand yuan.
Rehear cancel first trial adjudicates
After 2 careful adjudicate, fine horse amounts to a company to refuse to obey, to Zhejiang tall courtyard applies for rehear. On December 14, 2017, zhejiang tall courtyard makes a ruling, decision bring before the court this case. Almost at the same time, toy of golden China city is mixed association of baby child things offers trade mark right to trade commissioner with respect to controversy brand invalid declare request.
Trade commissioner thinks after classics cognizance, eleventh of our country trademark law the first (one) regulation, only of the current name of this commodity, graph, model, must not serve as brand to register, the current name that indicates among them is to point to what national level, occupation standard sets or the name of established by usage. Controversy brand by " clever club " the character is formed, according to the fact that already found out, apply for in controversy brand a few days ago " clever club " one word serves as beneficial wisdom to spell the name that inserts building blocks toy to already was relevant public place witting, and mix for Chinese toy association of baby child things is approbated, already became large building blocks, toy, building blocks (toy) the current name of commodity established by usage, the goods that reason controversy brand already made trademark law set in the enrollment on 3 afore-mentioned commodity is general the case of the name. On November 15, 2018, trade commissioner makes invalid declare request ruling book, declare controversy brand is invalid.
