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Second round "refresh service" trademark battle

second round "refresh service" trademark battle

December 25, 2018

recently, Nippon coatings "refresh service" trademark case has attracted widespread attention in the industry. Paint classics learned that as a well-known brand in China's paint market, Nippon has continuously injected brand connotation into its refresh services in the Chinese market since 2009, and "refresh services" has gradually become a proper term for Nippon

however, just when Nippon wanted to brand and privatize the "refresh service", it received a "blow to the head" from the Beijing Higher People's court - on December 19, 2018, the official of the Beijing Higher People's court announced the "Nippon coatings (China) Co., Ltd. and the Trademark Review and Adjudication Board of the State Administration for Industry and commerce, the second instance administrative judgment (2018) Beijing Xingzhong No. 6080" (hereinafter referred to as "the judgment") of Chinese coatings. According to the judgment, Nippon coatings lost the second instance of the trademark case of "refresh service"

the judgment date 5. Accumulator: some electro-hydraulic servo experimental machines are equipped with accumulators on December 7, 2018, and this judgment is final, which means that this trademark dispute that has lasted for two years has come to an end. The final judgment shows that "refresh service" cannot be used as a registered trademark for any coating enterprise, that is, the whole coating industry can be used together, which is a shared term. This may bring unknown variables to China's repainting market strategy, which Nippon has worked hard for so many years

no wind, no waves, things happen for a reason. The trademark dispute of "refresh service" has to start with the repainting market

as we all know, ordinary houses need to be renovated or repainted after 5 or 10 years, while China's real estate market has experienced 20 years of rapid growth, and tens of thousands of old houses need to be repainted. Statistical data show that at present, there are no less than 8million residential houses that need to be repainted every year in China, with a market capacity of nearly 100 billion

in the face of such a huge "cake", as a leading enterprise in China's coating industry, Nippon chose the new functional material of high thermal conductivity, electrical conductivity and corrosion-resistant copper alloy developed by xianguoliang copper material, which has a very broad market prospect. In 2009, Nippon China launched the "color for love" program to beautify, repair and improve the campus environment for schools in remote areas of China, while spreading the concept of "Refresh". In 2011, Nippon China launched the "Refresh" service, which opened a service mechanism other than products. In 2012, Nippon began a large-scale layout of "refresh flagship stores" across the country. In addition, it also launched "dream reformer" with Oriental satellite TV, advocating the "refresh spirit"

at the same time, in order to occupy more market share and better explore the potential and huge repainting market, Nippon wanted to brand and privatize "refresh service", so it applied for the registration of the word trademark of "refresh service" on June 20, 2011, It is designated to be used in class 37 "interior decoration repair; paint and repair of signs; interior decoration; indoor and outdoor paint; whitewash; cleaning the building (Interior); cleaning the building (Interior); building construction supervision; building waterproofing; building thermal insulation and sound insulation; maintenance information" services. The registrant is Nippon Corporation, and the exclusive right to use the registered trademark is from July 28, 2012 to July 27, 2022

by 2016, "refresh service" has gained a high reputation after a large number of extensive publicity by Nippon. In the industry, "refresh service" has become a synonym for Nippon in repainting the market. At this time, Nippon's layout for the repainting market has gradually achieved results, but it doesn't want to be disrupted by Metz. (hereinafter, the "refresh service" trademark is referred to as the disputed trademark)

on November 14, 2016, metus filed a request for invalidation with the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce of the people's Republic of China (hereinafter referred to as the trademark review and Adjudication Board) for violating Article 11 of the Trademark Law of the people's Republic of China (hereinafter referred to as the Trademark Law of 2001) as amended on October 27, 2001, Request invalidation of the disputed trademark

in support of the reasons for its invalidation, the company submitted the following evidentiary materials to the Trademark Review and Adjudication Board: the original certificates of Guangdong coating industry association and Shunde coating chamber of Commerce to prove that "refresh service" is a common name and cannot be registered as a trademark

in the ruling on the request for invalidation of "refresh service" Trademark No. [2017] made on October 26, 2017 (hereinafter referred to as the sued ruling), Nippon refused to accept the ruling and filed an administrative lawsuit with the Beijing Intellectual Property Court on December 22, 2017

the Beijing Intellectual Property Court said that after accepting the case, the court formed a collegial panel according to law and held a public hearing on March 21, 2018. Wang Yu and Wang Yuehong, the entrusted agents of the plaintiff Nippon company, Yang Jianping, the entrusted agent of the defendant Trademark Review and Adjudication Board, and fan Yuanzhi and Fu Chuanjie, the entrusted agents of the third party metox company, attended the court

when hearing the defense, Nippon believed that although the disputed trademark has a certain narrative nature, it is not a conventional expression in Chinese, let alone a conventional expression of the content characteristics of the service it refers to. Therefore, "refresh service" is not an industry common name. And Nippon has been actively safeguarding its rights to prevent "refresh service" from degenerating into a common name. At the same time, Nippon submitted several evidentiary materials. (copy)

the Beijing Intellectual Property Court held that the disputed trademark is a pure text trademark "refresh service", which is designated to be used in indoor and outdoor paint, whitewash and other specific service industry projects. The meaning of "Refresh" itself is to renovate the house through painting and other work content, which itself has the meaning of describing the service content; The word "service" itself cannot be used as a significant identification part in the disputed trademark. In addition, "refresh service" is only a description of the service content provided by Nippon. It will not recognize "refresh service" as a trademark to generate popularity, nor will it enhance the significance of "refresh service" through the above use. Therefore, the evidence in the case is not enough to prove that the disputed trademark itself has a significant role as the source of trademark differentiated services after publicity and use. The registration of the disputed trademark violates the provisions of paragraph 1 (2) of Article 11 of the Trademark Law of 2001. The claims and reasons of Nippon company are lack of factual and legal basis, and this court will not support them. Finally, the Beijing Intellectual Property Court, in accordance with the provisions of Article 69 of the administrative procedure law of the people's Republic of China, ruled that the lawsuit of Nippon company was rejected as meeting the requirements of the national standard gb/t228 (2) 010 "tensile test method for metallic materials at room temperature" and other standard requirements. The Trademark Review and Adjudication Board and meitushi company were subject to the original judgment

however, Nippon company refused to accept the original judgment and appealed to the Beijing Higher People's court, requesting the cancellation of the original judgment and the sued ruling, and ordering the Trademark Review and Adjudication Board to make a new ruling; And gave Jinan testing machine factory a number of reasons for appeal. After accepting the case on October 23, 2018, the Beijing Higher People's court formed a collegial panel to hear the case according to law

the Beijing Higher People's court said that in this case, the disputed trademark was composed of the text "refresh service", which was approved to be used on projects in specific service industries such as indoor and outdoor paint and whitewash. According to the general understanding of the relevant public in China, "Refresh" refers to the renovation of houses through painting and other work content, "refresh service" is easy to be understood as a specific service related to service renovation on the whole. According to the general attention of the relevant public, the disputed trademark is used in indoor and outdoor paint, whitewash and other services as a whole, which is easy to be interpreted by the relevant public as a description of the content and characteristics of the relevant services, and it is not easy to identify it as a sign to distinguish the source of services. Therefore, the use of the disputed trademark in the approved service provider lacks significant features, which violates the provisions of Article 11, paragraph 1 (2) of the Trademark Law of 2001. At the same time, based on the existing evidence submitted by Nippon, it is not enough to identify that the controversial trademark has played a significant role in distinguishing the source of services through publicity and use. The Court confirmed that the defendant's ruling and the original judgment were not inappropriate. The appeal of Nippon company lacks factual and legal basis, and this court will not support it. Finally, the Beijing Higher People's court dismissed the appeal, upheld the original judgment, and also announced that the judgment was final

the announcement of the final judgment means that Nippon cannot appeal again against the "refresh service" incident. At the same time, it also means that the "refresh service" cannot be used as a registered trademark for any coating enterprise, but for the whole industry. In fact, the loss of trademarks may have disrupted some layout of Nippon, but the impact is not as great as expected. After all, Nippon has been working on repainting the market for many years, and the concept of Nippon refresh service can also be said to be deeply rooted in the hearts of the people

of course, for other coating enterprises, this final judgment may mean the hope that in the future, any enterprise can use the word "refresh service" in the recoating business, which is familiar to the market and consumers, and there is no need to search for similar words, and invest time and energy to cultivate market awareness. However, the market share of enterprises ultimately depends on products and services. In the future, it still needs time to prove how much cake enterprises can share from the repainting market

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