“Led Zeppelin" is the name of a famous U.K. rock band in the 20th Century. For a trademark which is very similar to the name of the band, the band's publisher, SUPERHYPE TAPES LIMITED (hereinafter referred to as SUPERHYPE), launched a trademark battle with the Chinese individual HE from Fujian Province lasting 6 years and finally won.

According to the final judgment made by Beijing High People's Court on September 27, 2017, the Trademark Review & Adjudication Board under the State Administration for Industry and Commerce (TRAB) made a new review decision on November 9, 2017 on the opposition review application filed by SUPERHYPE against the trademark No. 8631875 "Led Zepplin" (hereinafter referred to as the trademark at dispute) that the trademark should not be approved for registration.

The trademark at dispute was applied for registration by HE on September 2, 2010 and designated on clothes and other goods in Class 25. 

On June 20, 2011, the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as TMO) approved and published the trademark at dispute after preliminary exam.

SUPERHYPE filed an opposition to TMO against the trademark at dispute on September 20, 2011, claiming that HE’s registration application for the trademark at dispute violated Art. 41.1 of the 2nd amendment of the Trademark Law that related to the prohibition of obtaining trademark registration through deception or other improper means.

After examination, TMO made an opposition decision on August 31, 2012 that the opposition made by SUPERHYPE was not tenable and the trademark at dispute was approved to be registered. SUPERHYPE was not satisfied and applied to TRAB for review on October 15 of the same year.

On March 24, 2014, TRAB made the review decision that SUPERHYPE’s claim that the trademark at dispute was filed by deception or other improper means to disrupt the trademark registration order, harm the public interest and illegally occupy the public resources was not fully supported. Accordingly, TRAB approved the registration of the trademark at dispute.

Not satisfied with the above decision made by TRAB, SUPERHYPE then brought an administrative lawsuit to the Beijing 1st Intermediate People's Court. After trial, the Court held that the act of HE’s application of the trademark at dispute could hardly be identified as legitimate and would disturb the normal order of trademark registration and administration in China. The court made the first-instance judgment to revoke the sued decision made by TRAB and ordered TRAB to make a new decision on the review application of SUPERHYPE.

The disgruntled TRAB then appealed to Beijing High People's Court. The High Court held after hearing that apart from the trademark at dispute, HE applied for more than 10 other trademarks in other classes, involving the names of other bands, celebrities as well as famous associations. HE did not appear in court, and did not provide any reasonable explanation for the application of the above trademarks; it could be inferred based on the documented evidence that HE had the hoarding intention to apply the above trademarks as well as the trademark at dispute, in violation of Art. 41.1 of the 2nd amendment of the Trademark Law (effective before May 1, 2014). Accordingly, the Court made the final judgment to reject the appeal of TRAB and upheld the judgment of the first instance.

Although the wording of the article applied in this case, Art. 41.1 of the 2nd amendment of the Trademark Law is for the “registered trademark”, considering the legislative intention of this article is to prohibit trademark registration by improper means, many opposition cases quote this article in practice to deny trademarks at dispute approval for registration.

 (Adapted from China IP News)

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