Bond High Performance 3D Technology B.V.(hereinafter referred to as BOND company) applied for the international registration of "BOND" trademark No. 1485169 in class 7, which extends the protection to China(hereinafter referred to as the applied trademark). CNIPA rejected the application for trademark registration by citing the earlier trademark No. 36852077 " " trademark in class 7 in the name of Bondtech AB. BOND Company applied to CNIPA for review application for the applied trademark, and CNIPA made the review decision on the applied trademark to reject the extension protection in China. Bond company filed an administrative lawsuit to Beijing Intellectual Property Court(BIPC). In the lawsuit, Bond companysubmitted one piece of evidence to the court to prove that the owner of the cited trademark,Bondtech AB has issued a trademark coexistence consent statement and agreed the applied trademark was registered in class 7. After hearing, BIPC held that, in this case, in view of the fact that the owner of the cited trademark has issued a trademark coexistence consent statement,agreed the applied trademark was registered on the reviewed goods, and there are certain differences between the applied trademark and the cited trademark, it should be determined that the co-existence of the applied trademark and the cited trademark will not lead to confusion and misunderstanding of consumers, and the applied trademark and the cited trademark do not constitute similar trademarks used on the same or similar goods. BIPC ruled to revoke the sued decision made by the CNIPA.
But, CNIPA refused to accept the judgment of BIPC and appealed to the Beijing Higher People's Court(BHPC). The main reason for the appeal is that the applied trademark "BOND" is similar to the cited trademark "BONDTECH" in terms of letter composition, calling and the overall impression of consumers, constituting a similar trademark. If the two trademarks coexist on the same or similar goods of the "3D printer", it is easy for the relevant public to confuse and misrecognize the source of the goods, which has constituted a similar trademark used on the same or similar goods. Although the owner of the cited trademark has issued the coexistence consent, the trademark itself is also a sign for consumers to identify the source of goods. The waiver and transfer of the trademark owner's rights should not confuse consumers.
After hearing, BHPC held that whether the applied trademark and the cited trademark constitute similar trademarks, and whether the coexistence of the two will cause confusion and misunderstanding among the relevant public, the registrant of the cited trademark, as direct interested parties, is more concerned than other relevant public. Therefore, when judging whether the common existence of similar goods or services between the applied trademark and the cited trademark will lead to confusion and misunderstanding by the relevant public, the trademark coexistence agreement reached between the registrant of the cited trademark and the applicant for the applied trademark should be considered. On the one hand, in the case of differences between the applied trademark and the cited trademark, the trademark coexistence agreement can be used as a reference factor to eliminate the possibility of confusion; On the other hand, we should also consider the private attribute of the exclusive right to use trademarks. The trademark coexistence agreement reflects the transfer and disposal of part of the right space of the exclusive right enjoyed by the cited trademark registrant. According to the principle of autonomy of will, the trademark registrant should be allowed to freely dispose of its exclusive right to use trademarks. The applied trademark is a word trademark consisting of "BOND"; The cited trademark is a graphic combination trademark composed of "BONDTECH" words and graphics. Although both the applied trademark "BOND" and the cited trademark "BONDTECH" contain "BOND", the cited trademark also contains the word "TECH" and the graphic part. There are some differences between the two in terms of constituent elements, text composition, overall appearance, etc. The trademark coexistence consent statement submitted by Bond company is issued by the obligee of the cited trademark. Under the condition that it does not violate laws and administrative regulations, and there is no evidence to show that the coexistence of the applied trademark and the cited trademark is sufficient to damage the rights and interests of the relevant public, the trademark coexistence consent statement should be considered as a strong evidence to eliminate the possibility of confusion; It is not easy to cause confusion among the relevant public to identify that the applied trademark and the cited trademark coexist on the same or similar goods.
