Misleading Emblems in China – Harris Sliwoski LLP (Previously Harris Bricken)

Misleading logos is probably not registered in China, based on Article 10(7) of the Trademark Law. Whereas the reasoning behind this prohibition is smart, the China Nationwide Mental Property Administration (CNIPA) typically interprets the statute in questionable methods. To keep away from points, manufacturers registering their logos in China ought to keep away from utilizing any marks which may be thought of misleading, in complete or partly, underneath CNIPA’s low threshold.

Article 10(7) stipulates that logos that “are misleading and are prone to mislead the general public when it comes to the standard, place of manufacturing or different traits of the products” is probably not registered.  U.S. trademark regulation has an identical provision, barring the registration of logos that encompass “misleading” matter (15 U.S.C. § 1052(a)). One hypothetical instance of a misleading trademark is “Rum 151”, if utilized in reference to rum that isn’t, in reality, 151 proof. Alcohol content material is one in all rum’s traits; use of “151” on 80 proof rum is prone to mislead the general public. Underneath circumstances equivalent to these, CNIPA’s refusal to register arguably serves a invaluable perform: Nobody ought to be duped into making ready a weaker Cuba Libre.

At instances, nevertheless, CNIPA’s interpretation of Article 10(7) might be unduly broad. Just lately, CNIPA rejected an English-language mark that’s one thing like “Prime World Merchandise”. (This can be a case we’re dealing with, so we can not let you know what the precise mark is, sorry!) CNIPA’s rejection discover didn’t specify precisely why the mark was misleading, and even which a part of the mark was thought of misleading, however it seems that the meat was with the phrase “prime”. Apparently, the general public could be “misled” as to the standard of the products related to the trademark if they’re described as “prime”.

CNIPA appears to take a dim view of Chinese language customers. Do they actually assume that they may assume that Prime World Merchandise are in reality the “highest in place, rank, or diploma” available in the market, simply because the model identify consists of the phrase “prime”? To not point out that these members of the Chinese language public who perceive the English phrases on the trademark may additionally choose up on the truth that “prime” modifies “world”, not “merchandise”.

The truth that a trademark is in a international language could assist prod CNIPA into discovering that the identical is misleading, given considerations that Chinese language customers won’t perceive sure linguistic nuances. However CNIPA seems to have points with the Chinese language time period “最好” (“finest”) as properly, with functions that embrace that phrase usually denied.

It’s arduous to imagine that CNIPA is de facto involved over precise deception in these circumstances. A extra believable rationalization is that CNIPA doesn’t need the trademark registration course of to enshrine a specific model’s superlative claims. In any case, if one model obtained to register “Spiciest Chili Sauce”, no different model would get to make the identical declare, no less than within the type of a trademark (for what it’s price, CNIPA has not registered any marks with the time period “最辣” in reference to precise foodstuffs).

In any case, CNIPA’s method is unnecessarily crimping the creativity of manufacturers and making it tougher to keep away from trademark similarity, with none precise profit to the general public. Finally, although, that’s irrelevant to trademark candidates in China. Understanding how strict CNIPA is, what trademark candidates must do is make sure that their marks can’t be thought of misleading in any manner, primarily based on CNIPA’s peculiar understanding of that time period.