Author: Yunting, head Figure Source: Figure insects Creative
Recently, some media reported that Pinduoduo had applied for the “ten billion subsidy” trademark. The query of the author’s trademark office website found that this is really the case: Pinduoduo applied for a “ten billion subsidy” trademark in the 35th category of advertising and marketing, and the application date is October 18, 2019. Unlike previous major giants competing to apply for “Double Eleven” related trademarks, although large-scale e-commerce platforms are engaged in “ten billion subsidy” marketing activities, the trademark office database shows that there are only one more “ten billion subsidy” trademarks. Application, other giants did not follow up.
Why is the “ten billion subsidy” trademark only applied for one more application?
At that time, in order to grab the “Double Eleven” trademark, Ali, JD.com, and Suning made trademark applications for words similar to “Double 11”, “Double 11”, and “11.11”. Why is the application for the “ten billion subsidy” trademark so cold? The reason is very simple. Article 11 of China’s “Trademark Law” stipulates that only signs that directly indicate the quality, main raw materials, functions, uses, weights, quantities, and other characteristics of goods cannot be registered as trademarks. In short, the name of the trademark must be distinctive, just like you can’t apply for the “Apple” trademark on fruit products, and the apple that people can’t control is called Apple.
As a trademark name in the 35th category of marketing and advertising applications, it is highly likely that it will be rejected by the Trademark Office for lack of significance. Although the significance of “Double Eleven” is also problematic, it is better than “ten billion subsidies”. The latter is too straightforward to use in marketing, so maybe other giants are too lazy to try. Only the proponents of the “ten billion subsidy” concept of Pinduoduo will apply for the test with a mentality of trying.
If the “ten billion subsidy” trademark is registered, will there be obstacles to safeguarding rights?
As a trademark lawyer, if my client has a “ten billion subsidy” trademark application requirement, the author will definitely disclose the corresponding risks: first, the trademark application will most likely be rejected; second, even if luckily the application is successful, rights protection Obstacles may also be encountered at times, and defended parties can argue that their use constitutes fair use. Because Article 59 of the “Trademark Law” clearly states: the general name, graphics, model of the product contained in the registered trademark, or directly indicates the quality, main raw materials, functions, uses, weights, quantities and other characteristics of the product, or The owner of the exclusive right to use a registered trademark has no right to prohibit others from using it properly.
So even if Pinduoduo is registered with this trademark, if a competitor uses the natural meaning of “10 billion subsidies” —subsidies to consumers for 10 billion yuan for publicity, then Pinduoduo ’s claim for infringement of competitors should be brought to court turn down.
Why is it not a wrong decision for Pinduoduo to apply for the “ten billion subsidy” trademark?
There are two main problems with “ten billion subsidy” trademarks: they are weak in significance and difficult to pass the examination; even if the registration is successful, it is difficult for the rights defending competitors to win. If you think from the perspective of an outside lawyer, advice to clients is mostly not to waste time applying. However, as the author who has managed trademark business in large companies, I would advise customers that if they don’t care about cost, it is not expensive to apply for a trademark anyway, you can try your luck.
On the one hand, China has a very large number of trademarks every year. In 2018 alone, there were 7.4 million applications. With so many applications, the Trademark Office’s review will inevitably lead to a leak. You can see the significance of the date on behalf of Double 11 Didn’t the weak sex mark also pass? On the other hand, for trademark names that do not have distinctiveness, the Trademark Law also has provisions for obtaining distinctiveness through use. You can also submit evidence of use and evidence of popularity to try your luck.
If you are lucky enough to get registered, then congratulations, you will have a good game tool in the extremely brutal e-commerce war. This trademark will definitely add a little bit to the competition.
Let’s take a look at how Alibaba used the “Double Eleven” precedent. Ali applied in 2011 and successfully registered the “Double Eleven” trademark in 2012. It is worth mentioning that all trademarks have a three-month announcement period before registration. For the “Double Eleven” trademark, JD.com and Suning originally had the opportunity to raise objections to attack this application, but they may not have paid attention to the “Double Eleven” trademark. , Or concerned that they also think that it is useless for Ali to get the trademark. Even if Ali sued that its use of “Double Eleven” infringed the trademark right, they could invoke fair use stipulated in Article 59 of the Trademark Law to defend it.
But Alibaba did get the shot and got JD a little bit blocked. Before the “Double Eleven” in 2014, JD.com advertised that there were fakes on competitors’ platforms. This provocation caused Ali’s dissatisfaction, and then Tmall, a subsidiary of Ali, sent a letter stating that “Double 11” was an Ali trademark, and other companies The use constitutes infringement, and has successfully put pressure on many advertising platforms, so that the “Double Eleven” word in Jingdong video ads has been mosaic. (Related link: Ali registered the” Double Eleven “trademark , Sparking an advertising battle )
In fact, Jingdong video ads use “Double Eleven” because of its natural meaning. It is used for promotions around November 11th, so it constitutes reasonable use. If the legality of these advertising platforms is seen from a practical perspective Problem, should not accept Ali’s complaint. However, the business environment is not ideal. In practice, the legal level of different companies varies, and their views are also different. Even if some platform legalists know that JD. The review will be more mechanical. When seeing that the “Double Eleven” used by JD being complained is the same or similar to the trademark on the complainant’s Ali trademark certificate, the platform is often prudent and will first ask the complained party to stop advertising or make corrections.
Finally, although my peers are not optimistic and the chances of obtaining registration are small, the author still believes that Pinduoduo’s decision to apply for the trademark of “ten billion subsidies” is correct. Because intellectual property rights, including trademark rights, are essentially business tools that raise barriers to competition, compared to the benefits they bring, the cost of an application is actually negligible.
Author: Yunting intellectual property lawyer.