In 2013, Article 7 of China Trademark Law after the third amendment for the first time explicitly included the principle of good faith.  Although the previous versions of rademark law did not have such specific article, it indicates the legislative spirit of "good faith" in relevant articles.  In the amendment of Trademark Law in 2019, the principle of good faith in Article 7 was not amended and has been maintained.

    Since Article 7 of Trademark Law clearly states that "the application for registration and use of a trademark shall be based on the principle of good faith", it is often being cited as a "miscellaneous provision" in cases of opposition or invalidation.  However, this provision is rarely supported by the examiner.  Generally, the examiner usually directly states "the evidence is not sufficient to prove that the opposed party violates the principle of good faith;" or slightly extended "Article 7 of 2013 Trademark Law is a general article, which is not the specific and direct basis for trademark examination.  This case will be examined according to the specific arguments of the applicant and the corresponding substantive provisions."  In short, Article 7 of Trademark Law seldom occupies the main attention of the agent or examiner when handling the case, but in a recent opposition case, Article 7 of Trademark Law, together with Article 30, has become the "protagonist" of the case.

    In the "decision of opposition for not approving the mark No. 28130978 'OTHO' for registration" made by the China National Intellectual Property Office ("CNIPA") on January 15, 2020, the CNIPA not only holds that the opposed trademark is "similar mark over similar goods" to the opponent's mark No. 7690406 "totto," etc., but also holds that: the opposed party has applied for more than 100 marks in multiple goods and services, many trademarks that are the same or similar to the marks that have been used by others with certain distinctiveness, and the opposed party fails to give a reasonable explanation for the creation of above trademark.  This office considers the above-mentioned acts of the opposed party have obvious intention of copying and imitating others' trademarks, which violates the principle of good faith, and will not only cause confusion over the source of goods among relevant consumers, but also damage the market order of fair competition.  Finally, according to Article 7, Article 30 and Article 35 of Trademark Law, the mark No. 28130978 for "OTHO" was not approved for registration.

    First of all, both the opposed mark "OTHO" and the cited mark "TOTTO" contain letters "T" and "O".  Only a few letters are different.  According to Standards for Trademark Examination and Trial, they can be considered as similar marks.  According to Chinese Classification of Goods and Services, the designated goods "clothing, underwear" of the opposed mark are not completely similar to those of the cited mark, but all goods in Class 25 are highly related, and goods in Class 25 have been previously judged by the CNIPA and the Beijing Intellectual Property Court as similar goods.  Therefore, Article 30 of Trademark Law is applicable to this case.

    Secondly, there are more than 100 marks under the name of the opposed party, and many of them are same or similar to the marks that have been used by others and have certain distinctiveness, as shown in the following table:

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    Thus, the CNIPA rejected the registration of the opposed mark by citing Articles 7 and 30 of Trademark Law simultaneously.    Many trademarks in the name of the opposed party are same or similar to those used by others and have certain distinctiveness.  It is difficult to say it a coincidence.  The opposed party obviously copied and imitated others' trademarks, which violates the principle of good faith.  Article 7 of Trademark Law is applicable to this case.

    In addition, in the opposition decision, the examiner also mentioned that the behavior of the opposed party "will not only cause confusion over the source of goods by relevant consumers, but also damage the market order of fair competition."  It also shows the legislative spirit of Article 44 of Trademark Law.  The first paragraph of Article 44 of Trademark Law states that "The Trademark Office shall annul the registered trademark if ... it was acquired by fraud or any other improper means.  Other units or individuals may request the Trademark Review and Adjudication Board for a ruling to annul such a registered trademark."  According to Standards for Trademark Examination and Trial, the situation of "obtaining registration of a trademark by other improper means" includes "A disputed trademark applicant applies for registration of multiple trademarks, which are identical or similar to others' trademark with relatively strong distinctiveness", and the opposed party in this case is similar to it.  Although Article 44 of Trademark Law is generally applied to invalidation cases, its legislative spirit is also reflected in Article 7 of Trademark Law, which can be applied to opposition cases.  The definition of "the act of obtaining registration of a trademark by other improper means" in the Standards for Trademark Examination and Trial includes that "its act violates the principle of good faith and damages the public Interests."

    It can be seen that Article 7 and Article 30 of Trademark Law can complement each other and be jointly applied to opposition / invalidation cases.

    In recent years, especially since the amendment of 2019 Trademark Law, the CNIPA has issued a series of regulations to crack down on malicious trademarks.  Whether the parties acts in bad faith has also become an important reference for examiners or judges in trademark cases.  Article 4, Article 7, Article 44 and other relevant articles and their legislative spirit can be applied in the case of opposition / invalidation when the disputed party obviously copies others' trademarks and violates the principle of good faith.  For trademark registrants, they should also follow the principle of good faith, not maliciously copying others' trademarks.

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