The Alhambra is a talismanic design inspired by the four-leaf clover and reminiscent of traditional Moorish quatrefoil (a framework pattern consisting of four overlapping circles). The four-leaf clover Alhambra jewelry collection established itself as a timeless symbol of luck.
3D Trademark for "four-leaf clover" registered in
3D Trademark Specimen of "four-leaf clover"
On
Disputes on 3D trademark distinctiveness
On
Because the CNIPA (prior TRAB) deem the mentioned 3D trademark is not easy to be recognized as a trademark by the public and cannot play the role of distinguishing products. Furthermore, the evidence provided by
- Even if the "four-leaf clover" is an original design, the inherent distinctives will not be affected by its originality. In actual use, the pattern is easily regarded as the shape of products by consumers, and it is difficult to distinguish the source of product.
-
Even if four-leaf clover products have been widely promoted and sold by
Van Cleef & Arpels in the Chinese market, they cannot prove the use of such pattern is Trademark Use. In the nature of lacking inherent distinctiveness, the acquired distinctiveness of the pattern in the products jewelry, necklace (jewelry), etc. cannot be proved sufficiently.
Therefore, Beijing IP Court rejected the request of
How to review 3D Trademark distinctiveness
Then, how to create 3D Trademarks of distinctiveness?
The answer lies in two aspects: 1) making sure that the trademark pattern itself is distinctive in nature; 2) If not, collecting sufficient evidence to prove its acquired distinctiveness.
It is not easy for applicants to meet the requirements of trademark distinctiveness when designing the 3D trademark. To make it clear to understand, we can look it from the perspective of ordinary consumers.
When we see a certain package or 3D character, we can instantly associate to its provider without carefully identifying the word, graphics and other "trademark elements".
In this regard, the previous package or 3D character assumes the role of distinguishing the source of product, and thus has the distinctiveness in the sense of a trademark. In the example below, the 3D trademark on the left is rejected, while the one on the right is registered.
Furthermore, to avoid overlap with Design rights, the examination on the distinctiveness of 3D Trademarks tends to be stricter than 2D trademarks. It does not only require the pattern to be distinctive in nature, but also requires the relative public to take the pattern as a sign indicating source of products.
If the relative public takes the pattern merely as (part of) the shape of the products rather than a trademark, the pattern cannot play the role of distinguishing products and thus will not be deemed as Trademark Use.
Such point has been stipulated in Article 9 of Provisions of the
Article 9
Where an application for registration as a trademark is made regarding a three-dimensional sign originating from the shape or part of the shape of the products itself, as it is hard for the relevant public to recognize the trademark as a sign indicating the source of the products in general circumstances, such sign generally possesses no conspicuous feature as a trademark.
The sole creation or the earliest use of such shape by the applicant cannot be definitely identified as the existence of conspicuous features as a trademark.
However, lacking distinctiveness in nature does not mean absolute impossibility in obtaining a registered 3D Trademark.
If the Applicant has sufficient evidence to prove its acquired distinctiveness through use, it can be registered later.
For example, the superstar in Chocolate world,
Conclusion
From the legal perspective, perhaps
Breakthrough of the case depends largely on whether the evidence submitted by
Anyway,
In addition, from the consumer perspective, I believe, for many jewelry lovers, the classic four-leaf clover design is still the instantly recognizable symbol of
As said by
The invalidation against No. 15736970 is still pending in the second instance. Hoping the four-leaf will bring the luck to the brand this time as usual ;-)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Ms
HFG Law & Intellectual Property
14/F, Huaqi Building No. 969
200040
Tel: 21 5 213 5500
Fax: 215 213 0895
E-mail: ovarlamova@hfgip.com
URL: www.hfgip.com
© Mondaq Ltd, 2020 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source