Beijing court applies strict criteria in ascertaining trademark use evidence

Jiangxi Hengda Hi-Tech applied for the registration of No. 6931816 trademark (disputed mark, see graphic below) in September 2008. The trademark was registered in May 2010, covering goods “legume drink, coke, milk tea (non-milk based), vegetable drink, pure water (drink), vegetable juices (beverages), non-alcoholic fruit juice beverages and lactic acid beverage (fruit products, non-milk)” in Class 32.

On 30 December 2013, a natural person named Pan Di filed for the cancellation of the trademark before the China Trademark Office (CTMO), on the ground of non-use for three consecutive years. On 27 September 2014, the CTMO found that the use evidence produced by Jiangxi Hengda was sufficient to maintain the registration. On 23 October 2014, Pan Di applied for the review of cancellation before the Trademark Review and Adjudication Board (TRAB). The TRAB scrutinized the trademark use evidence and found that there were a number of inconsistencies in the evidence submitted by Jiangxi Hengda, which failed to form a complete chain of evidence, and thereby cancelled the trademark on 7 January 2016.

Jiangxi Hengda brought a lawsuit to the Beijing Intellectual Property Court. The court, which held that the TRAB’s findings dissevered the connection of evidences, overruled the TRAB decision and maintained the validity of the trademark. Pan Di and TRAB appealed before the Beijing High Court, arguing, inter alia, that:
(1) Jiangxi Hengda had forged evidence;
(2) the evidence submitted could not prove that the disputed mark had been put into genuine commercial use during the designated period, so the facts ascertained in the first instance were erroneous.

Ming Xingnan is a partner and Xia Huan is an attorney-at-law at Wanhuida Peksung IP Group