CNIPA: Beijing High: No Protection of Thermos Beyond Registered Class
Over the No. 6241095 (TILIRTHERMO VOGUE trademark), the U.S- based Thermos Company had a rift with Ningbo Kefeng Daily Necessities Manufacturing Company.
Kefeng Company filed the registration of the trademark in dispute to the Trademark Office (TMO) and would obtain the official approval to use the trademark on Class 21 goods such as tempreature retention bottles and food insulation containers on February 14, 2010.
On December 4, 2015, Thermos launched an invalidation request against the trademark in dispute to the former Trademark Review and Adjudication Board (TRAB), claiming that its previously- registered No. 688940 " 膳魔 师 " (note: Chinese translation of Thermos) trademark （the reference mark）on stainless pots, temperature retention bottles, hot water bottles constitutes a well- known trademark and the trademark in dispute is a copy and imitation of its well-known trademark. Kefeng Company maliciously have registered a bunch of trademarks with the word “THERMO” and obtained the registration of the trademark in dispute by deception or other improper means.
After examination, the former TRAB believed that the evidence submitted by Thermos cannot prove that the reference trademark had been well- known before the date of registration of the trademark in dispute and these two marks are quite different in logo. The trademark in dispute did not copy and imitate the reference trademark. Kefeng didn't obtain the registration of the trademark in dispute by deception or other improper means. In this connection, the former TRAB upheld the registration of the trademark in dispute.
Thermos then brought the case to Beijing Intellectual Property Court. The IP Court held that there is a big difference between the trademark in dispute and“THERMOS”and words“膳魔师”. Thermos has not submitted sufficient evidence to prove that Kefeng maliciously applied for the registration of the trademark in dispute and failed to prove that the reference trademark had been well-known. Therefore, the trademark in dispute does not constitute imitation and translation of the reference trademark.
On November 28, 2017, the IP Court rejected the complaint of the Thermos in the first- instance judgement. The disgruntled Thermos then appealed to Beijing High People's Court. After hearing, Beijing High nodded with the trial court on the same ground, rejecting the appeal from Thermos and upholding the first- instance judgment.