China: Factors To Be Considered For Judging "Other Negative Influences"

---Right to Game Name "夺魂之镰" (Reaper of Souls in Chinese) Confirmed Through Judicial Procedures

[Case]

(2015) Jing Zhi Xing Chu Zi No. 3471 Administrative Judgment of Beijing Intellectual Property Court

(2016) Jing Xing Zhong No. 121 Administrative Judgment of Beijing Higher People's Court

The case of administrative dispute on review of trademark rejection between the Plaintiff XXXX Co., Ltd. and the Defendant the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce of the People's Republic of China ("TRAB") for that No. 13172795 Trademark "夺魂之镰" (Reaper of Souls in Chinese) was rejected due to be affirmed to have other negative influences.

[Brief Introduction to the Case]

The Plaintiff XXXX Co., Ltd. applied for No. 13172795 Trademark "夺魂之镰" (Reaper of Soulsin Chinese) under Class 9 products like "computer game software", etc.. The Defendant the TRAB considered that, the use of the Trademark Applied for "夺魂之镰" (Reaper of Souls in Chinese) as a mark on the products like computer game CD, etc. would easily produce negative social influences, and this trademark constituted the circumstances regulated in Article 10.1.8 of the Trademark Law of the People's Republic of China. The Plaintiff claimed that, "夺 魂之镰" (Reaper of Souls in Chinese) was the first film for reference of Diablo 3, a global famous e-game. After long-term broad use, "夺魂之镰" (Reaper of Souls in Chinese) and the film for reference of Diablo 3 launched by the Plaintiff had formed one-to-one correspondence relationship among relevant public. Consumers would not have other imagination about "夺魂之镰" (Reaper of Souls in Chinese), and this would not produce negative influences. In addition, the game name Diablo 3: Reaper of Souls had passed the examination and approval of the State Administration of Press, Publication, Radio, Film and Television of the People's Republic of China. As the supervision organ of game industry, the State Administration of Press, Publication, Radio, Film and Television of the People's Republic of China knows more about game industry, and its examination and approval result should be considered by the competent authorities in charge of trademarks.

The Court of First Instance and the Court of Second Instance supported the Plaintiff's grounds for dispute after trial, recognized that the meaning of the trademark "夺魂之镰" (Reaper of Souls in Chinese) did not exceed the standard accepted and tolerated by the public, and in combination with the fact that the game operated by the Plaintiff and including the characters of the Trademark Applied for had passed the examination and approval of the State Administration of Press, Publication, Radio, Film and Television of the People's Republic of China, as well as the Plaintiff's commercial propaganda and market performance of the game, it's available to affirm that, the use of the Trademark Applied for on the products like computer game CD, etc. would not induce negative social influences caused by relevant public.

[Abbreviature of Adjudication]

1.The Court considered in its judgment the characteristics of the products on which the Opposed Trademark was designated to use, and judged the general recognition of relevant public based on the characteristics of such products. In the case of "夺魂之镰" (Reaper of Souls in Chinese), the Court held that, the products on which the Opposed Trademark was designated to use were all related to computer game, and in combination with the general characteristics in terms of the name, screen, content and plot setting of computer game products, the meaning of the Opposed Trademark did not exceed the standard accepted and tolerated by its relevant public.

Here, two factors are considered: 1) The products designated; 2) the standard accepted and tolerated by relevant public. Firstly, when judging whether a mark used as trademark has "other negative influences", we shall judge the mark itself and the products or services on which it is designated to use. Secondly, in a case of "other negative influences", we shall adopt the judgment standard, namely general cognition of the public. And here, "the public" shall indicate the trademark use fields or objects decided by products or services. In the case of "夺魂之镰" (Reaper of Souls in Chinese), the Court adopted "the acceptance and tolerance of relevant public" as judgment standard, and what the Court considered was the degree of consumers' acceptance and tolerance of the charactersin the fields related to computer games.

2.The Court considered in its judgment the actual use of the Trademark Applied for. In the case of "夺魂之镰" (Reaper of Souls in Chinese), the Court considered the Trademark Applicant's business propagandaabout the Trademark Applied for, as well as the market performance of the products bearing the Trademark Applied for. As seen from the actual use and market effects of the Trademark Applied for, the trademark "夺魂之镰" (Reaper of Souls in Chinese) did not have other negative influences.

3.In the case of "夺魂之镰" (Reaper of Souls in Chinese), the Court considered the fact the game contai-ning the characters of the Opposed Trademark had been examined and approved by the State Administration of Press, Publication, Radio, Film and Television of the People's Republic of China when recognizing that the Opposed Trademark designated to use on the products like computer game CD, etc. did not have "other negative influences". When judging whether a mark used as trademark has "other negative influences", we shall respect relevant administrative examination and approval or administrative license. Here, two factors are considered: 1) The products designated; 2) the standard accepted and tolerated by relevant public. Firstly, when judging whether a mark used as trademark has

[Typical Significance]

There are many factors to be considered when judging "other negative influences", and the judgment shall be made comprehensively in combination with concrete situations of the cases. The judgment factors involved in judicial practices include: the trademark itself, the products and services on which the trademark is designated to use, the recognition of relevant public, the general cognition of relevant public, the actual use and market effect of the trademark, a-nd the approval of official institution and authorities, etc.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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