File No. C080504

Case Name: Wing Wah Cake Shop Limited, Hong Kong v. Trademark Review and Adjudication Board of PRC State Administration for Industry and Commerce

Filing Date: March 03, 2008 (by the appeal court)

Plaintiff: Wing Wah Cake Shop Limited, Hong Kong (Wing Wah Limited)

Defendant: Trademark Review and Adjudication Board of PRC State Administration for Industry and Commerce (the Board)

Third Party: LIAO Jinkun

Appellant: Wing Wah Cake Shop Limited, Hongkong (Wing Wah Limited)

Appellee: Trademark Review and Adjudication Board of PRC State Administration for Industry and Commerce (the Board)

Cause(s) of Action: Administrative litigation over the Board’s decision to support the third party’s registration of a trademark

Remedy Requested: Revoke the Board’s said decision and cancel the registration of the trademark in question.

Trial Court: PRC Beijing First Intermediate People’s Court

Appeal Court: PRC Beijing People’s High Court

Disposition: The trial court ruled in favor of the Board, supporting its decision to uphold the validity of the trademark in question.  The appeal court subsequently affirmed the trial court’s ruling.

Decision Date: May 13, 2008

Summary: The plaintiff (Wing Wah Limited) charged the defendant (the Board) with falsely supporting the third party’s (LIAO Jinkun) registration of a trademark “Ronghua”.  The trial court ruled in favor of the defendant.  The appeal court subsequently affirmed the trial court’s decision.

The Board decided to support the validity of the third party’s said trademark and rejected the request by Wing Wah Limited for its cancellation.

As the third party’s trademark in question was registered for use on metal containers and there was no evidence that the plaintiff, a cake shop, used the mark “Ronghua” on such goods priorily, the trial court held that the third party did not use unfair means to preemptively register the trademark of some reputation another person had used.  Due to a lack of evidence, the trial court also rejected the plaintiff’s claim that the registration of the trademark in question was acquired by fraud or other unfair means.  The trial court rejected the plaintiff’s claim that the third party and Ronghua Food Factory, a non-litigant party that reportedly used the trademark in question, were affiliations, deeming it irrelevant to the present case.  The trial court affirmed the Board’s decision to support the validity of the trademark in question based on PRC Administrative Procedure Law Article 54 (1).

The appeal court held that even though the appellant (Wing Wah Limited) had evidence that its mark “Ronghua” had been printed on a metal packaging container for moon cakes, the mark was for the cake, not the container.  As there was no evidence that the appellant used its mark on goods similar to metal containers priorily, the appeal court rejected its claim that the trademark in question was registered for use on goods similar to the appellant’s products, and the registration of the trademark in question constituted preemptive registration.  As the appellant did not submit evidence proving that the third party and the non-litigant part (Ronghua Food Factory) collaborated in manufacturing and using the packages and decorations for “Ronghua Moon Cake”, the appeal court decided that the available evidence was not sufficient to prove that the registration of the trademark in question was acquired by fraud or any other unfair means.  The appeal court also confirmed that whether the non-litigant party was an affiliation of the third party was irrelevant to the present case.  Based on PRC Administrative Procedure Law Article 61 (1), the appeal court affirmed the trial court’s ruling and rejected the appellant’s appeal.

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