Founded in 2003 by Mr.
Indeed, their popularity was created by the famous restaurant chain "China Bistro", launched in 2012, for which they own several trademarks registered in
In 2021,
The defendant WOW Momo until 2019 was using the trademark WOW!
In 2019, however, the defendant added, below the word
The plaintiff's claim is that with the addition of "BISTRO" below "
The plaintiff declared that this added word "WOW!" would not in any way mitigate the possibility of confusion or deception between the
During the trial, the defendant argued that, when compared in their entirety, the rival marks were not similar. Further, the plaintiff could not claim exclusivity over '
The first issue that
The court remarked that, seen as a whole, the plaintiff's and the defendant's marks are not deceptively similar: the plaintiff's mark consists of the word
A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade a mark which is likely to cause confusion on the part of the public because of:
(a) its identity with the registered trademark and the similarity of the goods or services covered by such registered trademark; or
(b) its similarity to the registered trademark and the identity or similarity of the goods or services covered by such registered trademark; or
(c) its identity with the registered trademark and the identity of the goods or services covered by such registered trademark.
These brought to prima facie finding of infringement, for which there is no doubt that the words
The defendant seeks to question the entitlement of the plaintiff to plead infringement on the ground that, while securing registration of the mark
Additionally, they would seek to contend that neither the word "
Having disclaimed exclusivity both in respect of "
Even if previous disclaimers were applicable, they would bar an infringement action claiming exclusivity over the terms '
Regarding the defendant's argument that neither '
WOW Momo's marks were therefore held to be deceptively similar, as their textual components, which constituted their essential and distinctive features, were deceptively alike.
Thus, the court ordered the defendant to cease the usage of the mark WOW!
WOW Momo appealed but the appellate court's verdict was the same. The litigation is ongoing, but it is unsure whether the defendant will appeal the findings of the appellate court to the Supreme Court.
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, 2023 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source