Second Instance Judgment in the GoingDown Trademark Case

　　The examiner's imaginative explanation of the trademark "GOING DOWN" has recently seen new developments. Let's take a look at the entire process of this case.

 

　　 Season 1: In December 2017, the "GoingDown" trademark was rejected on the grounds that "going down" is similar to "gou yindang" (够淫荡), and is likely to have a negative impact.

 

　　 Why would "going down" point to "gou yindang"?

　　 Season 2: August 2018, the decision on the rejection review upheld the rejection;

 

　　 Season 3: November 2018, the first-instance judgment revoked the review decision;

　　 GoingDown Gou Yindang Trademark Case First Instance Judgment

 

　　 Season 4: May 2019, the second instance changed the verdict (the review decision was upheld);

 

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　　 Attached is the second-instance judgment:

 

Beijing Higher People's Court

Administrative Judgment

(2019) Jing Xing Zhong 1512

 

　　 Appellant (original defendant) State Intellectual Property Office , address: No. 6, Xitucheng Road, West Jimenqiao, Haidian District, Beijing

　　Legal representative Shen Changyu, Director

　　Authorized agent Wei Ping, examiner of the State Intellectual Property Office.

 

　　 Appellee (original plaintiff) Nanjing Daqun Medical Technology Co., Ltd. , address: Room 413, 4th Floor, No. 138, Fengnan Road, Yuhuatai District, Nanjing, Jiangsu Province.

　　Legal representative Yang Jiafu, Executive Director

　　Authorized litigation agent Zhang Pangchong, lawyer of Beijing Guoshun Law Firm.

　　Authorized litigation agent Wang Ying, female, intern lawyer of Beijing Guoshun Law Firm.

 

　　The appellant, the State Intellectual Property Office, dissatisfied with the administrative judgment (2018) Jing 73 Xing Chu 10637 of the Beijing Intellectual Property Court in the administrative dispute over the rejection of the trademark application, appealed to this court.

　　After accepting the case on February 11, 2019, this court formed a collegial panel and conducted the trial in accordance with the law. This case has now been concluded.

 

　　 The Beijing Intellectual Property Court held that:

 

　　 Trademark No. 23218651 "GoingDown" (hereinafter referred to as the disputed trademark) is the English word "Going Down", a commonly used term with the meaning of "descending, sinking". The English "Going Down" itself does not have any negative meaning, and the general public will not generally interpret "Going Down" as an uncivilized term.

 

　　Therefore, the use of the disputed trademark on the designated goods has no adverse impact, and the decision on the review of the trademark, No. [2018] 155733 (hereinafter referred to as the appealed decision), is incorrect in this regard.

 

　　In accordance with Article 70, Paragraph 1 and 2 of the Administrative Litigation Law of the People's Republic of China, the Beijing Intellectual Property Court ruled that:

　　1. revoked The appealed decision;

　　2. The former State Administration for Industry and Commerce Trademark Review and Adjudication Committee (hereinafter referred to as the Trademark Review and Adjudication Committee) shall make a new decision.

 

　　The State Intellectual Property Office, dissatisfied with the original judgment, appealed to this court, requesting the revocation of the original judgment and the upholding of the appealed decision. Its main grounds for appeal are: the disputed trademark constitutes the circumstances referred to in Article 10, Paragraph 1, Item 8 of the Trademark Law, and the original judgment is incorrect.

　　Nanjing Daqun Medical Technology Co., Ltd. (hereinafter referred to as Daqun Medical Company) accepts the original judgment.

 

　　 Upon examination and verification:

 

　　 1. The disputed trademark

　　1. Applicant: Daqun Medical Company.

　　2. Application No.: 23218651

　　3. Application date: March 20, 2017

　　4. Logo

　　

　　5. Designated goods (Groups 1001-1002; 1006-1007, Class 10): vaginal douche; biodegradable bone fixation implants; dentures; dental equipment and instruments; condoms; non-chemical contraceptives; sex dolls; artificial surgical implants; electric dental equipment; medical devices and instruments.

 

　　 2. The appealed decision: Trademark Review Document [2018] No. 155733 "Decision on the Review of Trademark Application No. 23218651 "Going Down"".

　　 Date of the appealed decision: August 29, 2018.

　　The Trademark Review and Adjudication Committee decided to reject the trademark application on the grounds that the disputed trademark applied for by Daqun Medical Company is harmful to socialist morality and is likely to have a negative social impact, and constitutes the circumstances referred to in Article 10, Paragraph 1, Item 8 of the Trademark Law of the People's Republic of China.

 

　　 3. Other facts

　　During the original proceedings, Daqun Medical Company submitted two additional pieces of evidence to prove that the disputed trademark would not have an adverse impact.

　　 In addition, According to the central institutional reform deployment, the relevant responsibilities of the former State Administration for Industry and Commerce Trademark Office and Trademark Review and Adjudication Committee are unified by the State Intellectual Property Office. The above facts are supported by the appealed decision, the disputed trademark file, the trademark rejection notice, the trademark rejection review application, the evidence submitted by the parties, and the court record.

 

　　 This Court holds that:

 

　　Article 10, paragraph 1, item 8 of the Trademark Law stipulates that marks that are detrimental to socialist morals or have other adverse effects shall not be used as trademarks. Article 5, paragraph 1 of the "Supreme People's Court's Provisions on Several Issues Concerning the Trial of Administrative Cases on Trademark Authorization and Confirmation of Rights" stipulates that "People's Courts may determine that trademark marks or their constituent elements may have a negative or adverse impact on the public interest and public order of our country, and that they fall under the "other adverse effects" stipulated in Article 10, paragraph 1, item 8 of the Trademark Law."

 

　　Since the "other adverse effects" stipulated in Article 10, paragraph 1, item 8 of the Trademark Law are a definition of the absolute circumstances prohibiting the use of relevant marks as trademarks, therefore, it is necessary to avoid both improperly expanding the scope of determination, restricting the space for operators to freely express and create in commercial activities, and improperly narrowing the scope of determination , so that marks that may have a negative or adverse impact on the public interest and public order of our country in terms of politics, economy, culture, religion, and ethnicity may be registered, and the leading role of the judiciary in the trial of trademark administrative cases can be effectively played.

 

　　 In this case, the disputed trademark consists of the letters "Going Down". Although the literal translation of this letter combination has the meaning of "going down, sinking", it has uncivilized implications in the specific context of the goods for which it is designated.

 

　　 In order to guide the Chinese public to establish a positive mainstream culture and values, and to stop the behavior of catering to "vulgarity" in a way that skirts the rules, and to play the role of the judiciary in inheriting mainstream cultural consciousness and guiding values, the respondent's determination that the disputed trademark itself has negative implications and a low-key style is not inappropriate, and this Court confirms it.

 

　　 At the same time, trademarks are commercial marks attached to goods and entering the public domain. In addition to indicating the source of goods and carrying the business reputation of enterprises, they also carry certain functions of value dissemination and cultural dissemination. In this case, the disputed trademark is designated for use on "vaginal douches, condoms, non-chemical contraceptives, and sex dolls", The actual contacts and scope of influence in the public domain are extensive and uncertain, and the cultural style and value connotation reflected in the trademark can be widely disseminated through its use.

 

　　 The applicant's behavior of using the trademark to make low-brow hints and create marketing gimmicks to attract public attention is also likely to have an adverse impact on public order, business culture, and social morality.

 

　　Therefore, the disputed trademark constitutes the circumstances stipulated in Article 10, paragraph 1, item 8 of the Trademark Law. The original judgment's determination of this is wrong, and this Court corrects it. The State Intellectual Property Office's appeal reasons have factual and legal basis, and this Court supports them.

 

　　 In summary, The original judgment's findings of fact and application of law are erroneous and should be corrected. The State Intellectual Property Office's appeal is valid, and this Court supports its appeal request. In accordance with Article 69, Article 89, paragraph 1, item 2, and paragraph 3 of the "People's Republic of China Administrative Litigation Law", the judgment is as follows:

　　1. revoked Beijing Intellectual Property Court (2018) Jing 73 Xing Chu 10637 Administrative Judgment;

　　II, rejected Nanjing Daqun Medical Technology Co., Ltd.'s litigation request.

 

　　The first-instance case acceptance fee of 100 yuan shall be borne by Nanjing Daqun Medical Technology Co., Ltd. (already paid). The second-instance case acceptance fee of 100 yuan shall be borne by Nanjing Daqun Medical Technology Co., Ltd. (to be paid within seven days from the effective date of this judgment).

 

　　This judgment is a final judgment.

 

Presiding Judge Tao Jun

Judge Sun Zhuyong

Judge Fan Xue

May 10, 2019

Clerk Zhang Mengjiao

 

Source: Beijing High Court Intellectual Property Database