China: HFG 为客户赢得超过5 年时效的无效宣告案件(非驰名商标案件) 

Last Updated: 27 April 2018
Article by HFG Law Firm

近日,国家工商行政管理总局商标评审委员会于作出商评字[2018]第 0000022013 号无效宣告请求裁定书,裁定第 8397269 号"REDLINE"商标无效。

该诉争商标于 2011 年 7 月被核准注册,核定使用在第 14 类手表,钟,电子钟表,装饰品(珠宝),首饰盒,闹钟,表,玛瑙,银饰品,珍珠(珠宝)等商品项目上。2016年 12 月 6 日,该商标由原注册人陈雨峰转让给上海亿券贸易有限公司。

科迪特有限公司是一家法国知名的珠宝公司,其提供的 系列首饰饰品,深受世界各地消费者的喜爱。

本案是由 HFG 代理的一件具有相当代表性的疑难案件,承办律师接到科迪特有限公司的委托后,对本案进行了大量证据收集、调查取证工作,包括历年广告记录、相关网页素材、其他数个国家的销售记录、各种类型的宣传材料等,这些证件足以证明申请人在申请商标是模仿国外知名商标,恶意明显。

根据中国《商标法》的相关规定,在商标注册之日起五年内,在先权利人或者利害关系人可以请求商标评审委员会宣告该注册商标无效。而本案已经超过了五年的时间限制。HFG 经过进一步查证,发现自诉争商标"REDLINE"核准注册到被提出无效宣告申请时已超过五年,且注册申请人将该诉争商标经合法程序转让至其他所有人。因此无法依据因商标、商品项目近似,申请人恶意抢注为由,提出无效申请。

HFG 相关律师对申请人的资质进行进一步调查,确认原注册人陈雨峰在申请商标时,提供的身份证件的复印件为真实的证件,而同时递交的个体工商户的营业执照系假冒的证件。为了进一步确认该信息,

HFG 派律师前往工商行政管理局,对相关档案进行了进一步核实,确认该个体工商户的证件系假冒的证件。

HFG 将相关事实和理由递交了国家商标局评审委员会,并且以中国 2001 年《商标法》中第四十一条的"以欺骗手段取得注册..."的规定作为本案的突破口,利用各种证据证明了该商标注册申请人的身份不合法。最终,商标评审委员会采纳了 HFG 的无效申请请求,裁定此争议商标无效。

HFG 评论】

HFG 主任律师李蕾(Lanny LEE)指出,本案由于已经超过 5 年的无效宣告请求时效,看似已经无法提起无效宣告。而且许多委托人都会忽视对于被申请人的主体资格的审查,简单地认为商标局、商评委都已经审核过了,申请人则无需审核。但 2001 年《商标法》第四十一条的"以欺骗手段取得注册..."的规定正是用来防止以虚假申请材料骗取商标注册的,不可以轻易忽视。

在中国,个人无法申请商标。一般注册人为个人的商标,实质上其权利人主体是个体工商户。由于个体工商户的登记材料相对简单,程序也不尽完备,所以在处理案件的时候,针对个体工商户的主体资格需特别留意。本案就是一起商标权人提供了虚假主体材料骗取商标注册的案件。也正是本案的主要突破口,在 HFG 相关律师收集了相关证据后,得以胜诉,有效地维护了客户的合法权益。

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