Background of the case
A natural person Ye Changqing in Fujian Province, southeast China submitted a trademark registration application titled “DE LEUWE JAGT and diagrams” (application No.: 5479087) to Trademark Office of the State Administration For Industry & Commerce of the PRC on July 14, 2006, the designated goods is the class 33 fruit wine, grape wine, etc. Runping & Partners (R&P) on behalf of South Africa SEIDELBERG WINE ESTATE filed opposition within the objection time period. While the Trademark Office of PRC issued a ruling on June 2011 and declared to reject the opposition request and approve registration of the trademark application with an application No. 5479087. The SEIDELBERG WINE ESTATE refused to accept above ruling and submitted a request of reexamination to the Trademark Appeal Board of PRC within legal time limit, the Trademark Appeal Board issued a final determination that trademark application with an application No. 5479087 shall not be registered.
Focus of the controversy
The debate of this case is mainly centered on the Article 15 of Trademark Law of PRC, the focus of debate resides in that whether the trademark application with an application No. 5479087 constitutes a circumstance that the agent register the principal’s trademark its own name.
As in this case, although the purchaser of wine purchasing contract submitted by SEIDELBERG WINE ESTATE is a company in Fujian Province of mainland China, both the content of purchasing contract and the signatures are written in English, which is impossible to prove the natural person Ye Changqing has any connection with SEIDELBERG WINE ESTATE, but a series of evidences collected by the attorney of R&P undertaking this case and submitted to the Trademark Appeal Board reveals that the applicant Ye Changqing is the legal representative of the company in Fujian Province during the period of signing purchasing contract with SEIDELBERG WINE ESTATE and applying trademark registration with an application No. 5479087. The Trademark Appeal Board hereby affirm that the trademark application with an application No. 5479087 falls into a circumstance of Article 15 of the Trademark Law of PRC that “where an agent or representative, without authorization of client, seeks to register in its own name the client’s trademark and the client objects”, thus make a determination that the trademark application with an application No. 5479087 shall not be registered.
Comment on this case
The significance of this case lies in that the Trademark Appeal Board accept a broad understanding of “agency relationship” as provided for in Article 15 of the Trademark Law in its appeal determination of opposition, as the agency relationship not only comprises an agent stipulated in General Principles of Civil Law and Contract Law, but also include a representative with specific identification and relationship, such as a dealer who is aware of the trademark of the principal through commercial and business dealings.