Despite Relentless Efforts, Swiss Firm Unable to Rescue TM Rejected on Similarity

发布时间: 2018/5/16 11:10:00

  It all began with the rejection of the No.17971918 "艾利尔" trademark application of Alere Switzerland GMBH, requesting to be  certified on the products of medical apparatus. The rejection was made upon the prior No.6044562 trademark "艾利".  Alere then engaged in an all-out operation to regain what it believed was its.

  Recently, Beijing High People's Court made a final judgment to reject the Alere's appeal and uphold the rejecting decision  of the Trademark Review and Adjudication Board (TRAB)。

  Alere filed the registration application for the trademark in dispute on September 24, 2015, requesting to be certified on Class 10 with the products of diagnostic apparatus and injectors for medical purposes.

  Trademark Office (TMO) rejected the trademark registration application on July 7, 2016 on the ground that the trademark in dispute and cited trademark had constituted similarity on the similar products.

  As shown by, the cited trademark was filed by a U.S. firm Avery Dennison Cooperation on May 11, 2007 and approved to be registered on November 28, 2009, certified on Class 10 with the medical apparatus and instruments. In 2016, the cited trademark was transferred to another U.S. firm CCL label, INC.

  The disgruntled Alere lodged a request to the TRAB for review on July 22, 2016. TRAB made a negative decision on April 11, 2017.

  Refusing to accept the TRAB decision, Alere sought justice at Beijing IP Court.

  At the Court hearing in the first stance, Alere made clear it has no objection to similarity of the two products. However, Alere claimed that it has objection to similarity of the two trademarks and submitted copies of a coexistence agreement with the cited trademark holder.

  After hearing, Beijing IP Court held that the trademark in dispute and cited trademark constituted similarity in characters formation, calling and meaning. The agreement submitted by Alere could not support the registration of the trademark in dispute as the trademark in dispute and cited trademark shared high similarity. Therefore, the Court rejected Alere's request in the first stance.

  Alere then appeded Beijing High People's Court.

  Beijing High held that the pure character trademark "艾利" was completely contained in the pure character trademark "艾利尔". Both of them constituted similarity in character formation, calling and meaning.

  With regard to the trademark coexistence agreement, Beijing High noted that the copies did not pass lawful notarization. Meanwhile, in the case of high similarity between the trademark in dispute and cited trademark, had the trademark in dispute was approved to be registered, it would damage the interests of consumers, who were also one of the stakeholders in existence. Hence the agreement from Alere could not become the reason for registration of the trademark in dispute.

  In this connection, the Court dismissed the appeal of Alere.(by Wang Guohao)

  (Editor Li Xingyi)

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