Beijing Intellectual Property Court recently concluded the SWISSGEAR trademark administrative dispute against the Trademark Office (TMO) under the State Administration for Industry and Commerce (SAIC) lodged by Wenger Company.

In 2007, Wenger filed the SWISSGEAR trademark registration to SAIC on Class 8 products of manual tools etc.. Wenger’s filings were then challenged by a third company, a Fujian based company, Fuzhou Kuayang Trading Company, on grounds of similar with Switzerland’country name Swiss and SWISSGEAR should not be approved as a trademark. TMO then denied Wenger’s application.

Wenger then brought the case to the Trademark Review and Adjudication Board (TRAB) under SAIC, and seek re-examination. In its written plea, Fu zhou Kuayang claimed that the trademark in dispute designated to apply on Class 8 products of manual tools merely indicates the common name and it also violates the China’s Trademark Law.

After examination, TRAB dissmissed Wenger’ s application on grounds of violations of Article 10 and Article 11 of China’s Trademark Law. 

Disgruntled Wenger lodged an administrative suit and brought TMO and TRAB to the Beijing Intellectual Property Court. Wenger held two points of view. Firstly, the trademark do not violate China’s Trademark Law. Secondly, TMO’s decision violates the request principle. The Court held that the original opponent’s opinions should be included within TMO’s arbitral scope in general case. However, based on the public interests, the challenges related to Article 10, Article 11 and Article 12 should be considered as exceptional cases. Even if the opponent’s opinions were not taken during the re-examination period, further examination should be conducted during the suspension period.

For the reasons mentioned above, the Beijing Intellectual Property Court made this decision and rejected Wenger’s filings.

(by Zhu Wenming/ Su Jie)

(Source: CHINA REPORT INTELLECTUAL PROPERTY)