Appellant (the plaintiff) Beijing flavor QuXiang catering management company limited, place of residence in Beijing Chaoyang District.

The legal representative of Qu, general manager. (Not in court)

Commissioned agent Zhu Mou, Beijing Daan Law Firm lawyers.

Appellee (defendant) the state administration for industry and commerce trademark review and adjudication commission, place of residence in Beijing xicheng district.

Legal representative Zhao Mou, director.

Appointed agent Wei Mou, State Administration for Industry and Commerce Trademark Review and Adjudication Board examiner.

The appellant, Beijing Taste Qu Xiang Catering Management Company Limited (referred to as Taste Qu Xiang Company), filed an appeal to this court against the administrative judgment of Beijing Intellectual Property Court (2017) No. 2359 of Beijing 73 Xingchu, due to the administrative dispute over the refusal of the review of the trademark application. The Court accepted the case on July 5, 2017, and formed a collegial panel to hear the case according to the law. The case is now finalized.

The Beijing Intellectual Property Court found that:

1. The trademark in dispute

1.

2. Application number: 15740333.

3. Application date: November 19, 2014.

4. Marks:

5. Designated use of services (Class 43, Similar Groups 4301-4306): domiciliary agents (hotels, boarding houses); restaurants; motels; tourist houses for rent; hotel bookings; nursing homes; day nurseries (babysitting); animal boarding; rental of cooking equipment; bar services.

Second, other facts

April 23, 2016, the State Administration for Industry and Commerce Trademark Office (referred to as the Trademark Office) made a "Trademark Rejection Notice", according to the "Chinese People's *** and the State Trademark Law" (referred to as the Trademark Law), Article 30, Article 10, paragraph 1, paragraph 1 (8) of the provisions, the decision to reject the application for registration of the trademark in dispute.

On June 7, 2016, the company filed an application for review to the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (the Trademark Review and Adjudication Board), and on February 20, 2017, the Trademark Review and Adjudication Board made a decision to reject the application for review of the trademark No. 15740333, "Calling for a Duck and its Picture". Decision on Rejection of Trademark No. 15740333" (referred to as the decision), that: the trademark in dispute is "call a duck and figure" used as a trademark style is not high, easy to produce adverse social impact. In summary, the Trademark Review and Adjudication Board in accordance with the provisions of Article 10(1)(8) of the Trademark Law, decided: the application for registration of the disputed trademark shall be rejected.

In the course of the litigation, the company submitted to the Court, the disputed trademark in the advertising, merchandising, prior judgment, etc. *** 16 pieces of evidence. The above evidence is used to prove the use of the disputed trademark and the situation of popularity.

Another identified, on April 12, 2017, made (2017) Beijing line end 395 judgment, found that the trademark No. 15739764 "call a duck and figure" used in the 35th class "computer database information system, the information into the computer database

The Beijing Intellectual Property Court held that the use of the trademark No. 15739764 "叫个鸭子及图" in Class 35 "computer database information systemization, compiling information into computer databases" does not have adverse effects.

The Beijing Intellectual Property Court held that the trademark in dispute consisted of the characters "叫个鸭子" and a cartoon graphic of a duck **** with the same composition. The usual meaning of "duck" refers to a kind of poultry, but in the non-mainstream culture also has the meaning of "male sex workers". Generally, the second meaning is not acceptable for trademark use in mainstream culture and values. The disputed trademark is designated to be used for services such as "bar services, accommodation agency (hotels, boarding houses)", especially the words of the disputed trademark are composed of predicate verbs forming the phrase "to call a duck", which will further strengthen the related public's cognition and association with the second meaning, and is likely to cause adverse effects. This will further strengthen the relevant public's cognition and association of the second meaning, and will easily cause adverse effects. The Beijing Municipal Higher People's Court's judgment (2017) No. 395 found that "Calling a Duck" did not have an adverse effect. The reason for this finding is that the services designated by the disputed trademark are different from the services designated by the prior judgment trademark. The services designated by the Trademark in the Judgment No. 395 (2017), such as "computer database information systematization, compiling information into a computer database", are not related to the second meaning of "duck", and will not strengthen or lead the relevant public to associate with the second meaning of "duck". However, the disputed trademark is not related to the second meaning of "duck" and will not strengthen or lead the relevant public to associate with the second meaning. However, the services designated by the trademark at issue in this case are "bar services", which may lead the relevant public to associate the second meaning of the trademark with the second meaning of the trademark at issue in the course of specific use, and thus may easily produce adverse effects. In accordance with Article 69 of the Administrative Procedure Law of the People's Republic of China, the Beijing Intellectual Property Court ruled that the litigation request of Aroma QuXiang was rejected.

The company appealed to the Court against the original judgment, requesting to set aside the original judgment and the appealed decision, the main reason for the appeal was: the application for registration of the disputed trademark was not in violation of the provisions of Article 10(1)(8) of the Trademark Law.

The Trademark Review and Adjudication Board obeyed the original judgment.

The Court found that the Court of First Instance found the facts clear, and the disputed trademark and cited trademark file, "trademark part of the notice of refusal", the decision, the dismissal of the trademark application for review, the statement of the parties, the parties to the evidence provided by the parties to the case of the judgment, the Court shall be confirmed.

The Court held that:

Trademark Law, Article 10, paragraph 1 (8) states: "harmful to socialist morals or other adverse effects of the sign, shall not be used as a trademark." The "adverse effects" referred to in this article, refers to the trademark of the sign itself is harmful to the use of morality or the national political, economic, cultural, religious, ethnic and other social **** interests and public **** order has a negative, negative impact.

The trademark in dispute consists of the words "call a duck", a cartoon image of a duck, and a background **** with the same composition. The ordinary meaning of "duck" refers to a kind of poultry, according to the public's ordinary understanding, and can not be interpreted from the words "call a duck" beyond its literal meaning. The Court of First Instance held that "叫个鸭子" is not of a high standard and cannot be equated with the general knowledge of the public, therefore, the use of the disputed trademark on the designated services did not have an adverse effect. Therefore, the application for registration of the disputed trademark did not violate the provisions of Article 10(1)(h) of the Trademark Law.

In summary, the original judgment and the appealed decision found that the facts are not clear, the application of the law is wrong, and should be revoked according to law. The appeal of the company has a factual and legal basis, the court shall support its appeal. In accordance with the provisions of Article 70(1), Article 89(1)(2) and (3) of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:

I. Revoke the administrative judgment of Beijing Intellectual Property Court No. 2359 of (2017) Beijing 73 Xingchu;

II. Revoke the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce's Commercial Review No. 11593 of [2017] "

I. Revoke the Administrative Judgment on No. 15740333". Decision on Rejection and Reexamination of Trademark No. 15740333 "Calling a Duck and Figure";

Third, the Trademark Review and Adjudication Commission of the State Administration for Industry and Commerce on the Reexamination of Trademark No. 15740333 "Calling a Duck and Figure" filed by Beijing Yimei Quxiang Catering Management Co. "Trademark Review and Adjudication Commission of the State Administration for Industry and Commerce on the Beijing Taste Qu Xiang Restaurant Management Co.

The fees for the first and second instance cases are 100 yuan each, which are borne by the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (paid).