Recently, the Beijing Municipal Higher People's Court published the second-instance administrative judgment between McDonald's and the State Intellectual Property Office. The dispute between McDonald's and the State Knowledge Bureau over the trademark "McDonald's McCorn Chicken" lasted more than 2 years and finally settled.
As everyone should know, McDonald's has a burger called McDonald's McCorn Chicken. In 2018, McDonald's filed a trademark application for "McDonald's McDonald's McCorn Chicken" No. 35497148, designating it for use on "meat; poultry (non-live) and other" goods in Class 29 (collectively referred to as review goods).
The State Knowledge Office rejected the application for registration of the trademark on the goods for reexamination on the grounds that the trademark constituted the circumstances referred to in Article 10, Paragraph 1, Item 7 and Article 30 of the Trademark Law.
Item 7 of the first paragraph of Article 10 of the Trademark Law stipulates that "if it is deceptive and is likely to cause the public to misunderstand the quality or other characteristics of the goods or the place of origin, it shall not be used as a trademark".
Article 30 of the Trademark Law stipulates that if a trademark applied for registration does not conform to the relevant provisions of this Law or is identical or similar to a trademark that has been registered or preliminarily examined on the same or similar goods as others, the Trademark Office shall reject the application and shall not publish it.
McDonald's was not satisfied with the result and sued the State Knowledge Bureau in court. The court of first instance held that "McDonald's McCorn Chicken" was a hamburger name, and its use in the designated re-examination of goods was likely to cause the relevant public to misunderstand the types and other characteristics of the goods, constituting the circumstances stipulated in Article 10, Paragraph 1, Item 7 of the Trademark Law, and the decision of the Trademark Office was not improper, supported it, and rejected McDonald's Litigation Claim.
McDonald's was still not satisfied, and the Kojima Bureau got into a fight and continued to appeal. The main reason for the above is that the determination of whether a certain sign is deceptive should be based on the perception of the relevant public, and the "McDonald's Mc Fragrant Chicken" is not enough to cause misleading under the experience of daily life or the common understanding of the relevant public.
The Beijing Municipal Higher People's Court held that "deceptive" means that the sign for which a trademark is applied for registration is sufficient to cause the public to have a wrong understanding of the characteristics or place of origin of the goods. To determine whether a sign is deceptive, it shall proceed from the general cognitive level and cognitive ability of the public, combine the designated goods, and comprehensively consider whether the sign itself or its constituent elements are deceptive.
In this case, "McDonald's McCorn Chicken" is a hamburger name, according to the general cognitive level and cognitive ability of the public, it is generally understood as the name of the Hamburg product, and the meaning conveyed by the trademark sign is combined with the designation to use the reviewed goods, which is easy to make the public misunderstand the composition, quality and other characteristics of the reviewed goods.
In the end, the second-instance judgment rejected the appeal and upheld the original judgment. The case ended with the failure of McDonald's.