The term "far ahead" has become a hot word on the Internet because it was used many times by Huawei executive Yu Chengdong at the press conference. Recently, a piece of news stated that two companies in Shenzhen applied to register the "Yuanyue Leading" trademark, which is internationally classified into scientific instruments and educational entertainment. The author checked and found that "Far Ahead" has actually obtained trademark registration in about 20 categories, including products related to most subcategories of Class 9 scientific instruments, such as 0907 radio equipment products. You should know that Huawei’s recently released tablet computers and mobile phone products also belong to the 0907 subcategory of Category 9.
(Class 9 "Far Ahead" Trademark Information)
In this regard, the author is a little confused. The natural meaning of the word "far ahead" is the state of being much ahead of others. As a trademark, first of all, it lacks distinctiveness. Applying a state as a sign of goods or services has no recognition; secondly, it is deceptive and misleading. The product named by the trademark is far ahead, which is a strong derogation for competitors, so this name is not suitable as a trademark. It is not surprising that someone applies for "far ahead". There are many cases in society where people do not understand the law or are opportunistic, and the Trademark Office will just reject it. But obtaining trademark registration "far ahead" means that the Trademark Office has reviewed and approved the application, which should not be the case. The author has sorted it out and found that the "Far Ahead" trademark has the following problems:
1. Misleading Questions
According to Article 10 of the Trademark Law, any trademark that is deceptive and likely to cause the public to misunderstand the quality or other characteristics or origin of the goods shall not be used as a trademark.
The Class 9 "Yuan Yuan Leading" trademark was applied for in 2018, and should be subject to the 2016 version of the "Trademark Examination and Trial Standards" promulgated by the National Trademark Office. The use of "Yuan Yuan Leading" as a trademark complies with the following two descriptions of deception and misleading in this regulation:
1． It is easy for the public to misunderstand the quality, quality and other characteristics of goods or services. For example: registering the name "Best Quality" as a trademark for mineral water.
2. It is easy for the public to misunderstand the functions and usage characteristics of the product. For example: registering the name "Zero Defect" as a dye trademark.
2. The problem of lack of significance
According to Article 11 of the Trademark Law: signs that only directly represent the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods shall not be registered as trademarks. According to the interpretation of distinctiveness in the 2016 version of the "Trademark Examination and Trial Standards", "far ahead" is registered as a trademark, which complies with this provision for the description of signs that lack distinctive features:
It only directly indicates the quality of the designated product. For example, use "pure" for cooking oil and "good fragrance" for rice.
In addition, the 2021 version of the "Trademark Examination and Trial Standards" has added a more appropriate example to this section to prove that "far ahead" lacks distinctiveness: applying "super first-class" to hotel services.
3. False propaganda and false advertising issues
If a merchant uses "far ahead" to describe its products in publicity, but the quality and performance of the actual product are not much ahead of its peers, it may also lead to legal risks of false advertising under the Advertising Law and false publicity under the Anti-Unfair Competition Law. Here is a sad story about a similar situation with Guazi used cars. The company once published an advertisement claiming that "one year after its establishment, the transaction volume is far ahead." Because these short eleven words lack sufficient basis, they have triggered sky-high administrative legal risks and civil legal risks.
1. Industrial and commercial fines. An investigation by the Haidian Branch of the Beijing Municipal Administration for Industry and Commerce found that the transaction volume of Beijing Used Motor Vehicle Trading Market Co., Ltd. from July 1, 2015 to July 31, 2016 was 442,878 vehicles, and the transaction volume of Beijing Renrenche Used Motor Vehicle Brokerage Co., Ltd. from August 1, 2015 to July 31, 2016 was 92,375 vehicles. The number of second-hand car transactions of both parties exceeds the number of transactions of the parties concerned. Therefore, the slogan "One year after its establishment, the transaction volume is already far ahead" lacks factual basis and is inconsistent with the actual situation. Guazi used cars were fined 12.5 million yuan.
2. Friendly businessman sued. Because of this "far ahead" publicity, Guazi Used Cars was also sued civilly for false publicity by its peer company "Renren Che". The Beijing Intellectual Property Court finally ruled that Guazi Used Cars constituted false publicity and required it to immediately stop unfair competition, publish a statement to eliminate the impact, and compensate Renren Che Company for 3 million yuan.
4. Issues with absolute terminology
In addition to the Trademark Law, if merchants use "far ahead" to name their products, other legal risks may arise. According to the natural meaning of "far ahead", this word means much better than the second place, which may lead to legal risks of "absolute terms". Article 9 of the "Advertising Law" stipulates that advertisements shall not use terms such as "national level", "superior" and "best". If a merchant uses "far ahead" to describe its product in publicity, but the quality and performance of the actual product are not much ahead of its peers, it may bear the following legal liabilities as stipulated in the Advertising Law:
The market supervision and management department shall order them to stop publishing advertisements, and impose a fine of not less than 200,000 yuan but not more than 1 million yuan on the advertiser. If the circumstances are serious, the business license may be revoked, and the advertising review authority shall revoke the advertisement review approval document and will not accept its advertising review application within one year. For advertising operators and advertisement publishers, the market supervision and management department shall confiscate advertising fees and impose a fine of not less than 200,000 yuan but not more than 1 million yuan. If the circumstances are serious, the business license may be revoked.
For example, a sugar-roasted chestnut shop in Zhejiang was fined 200,000 yuan for advertising as "Best Roasted Seeds Shop in Hangzhou", "Best Roasted Seeds Shop in Hangzhou", "Best Roasted Seeds Shop in Hangzhou", and "The Most Special Roasted Seeds Shop in Hangzhou" just after the revised version of the Advertising Law came into effect. Although the court later adjusted it to 100,000 yuan, that was because the penalty was reduced because of its small business scale. The standard for ordinary companies is estimated to be 200,000 yuan.
Finally, if the Trademark Office makes a mistake, what should be done to remedy it? Some readers may ask: The Trademark Office is a state agency, can they also make mistakes? In fact, according to statistics, there are millions of trademark applications in our country every year. For example, in 2022, the number of trademark applications in our country was 7.516 million; the number of trademark registrations was 6.177 million. When processing so many applications, mistakes should be inevitable. If any readers believe that "Far Ahead" should not be registered as a trademark, they can apply for trademark invalidation to the Trademark Review and Adjudication Board, another agency under the State Intellectual Property Office. The reason is that according to the provisions of Articles 9 and 10 of the Trademark Law, the mark is deceptive and misleading, and is not distinctive. The Trademark Review and Adjudication Board will review this and if it is found that this problem does exist, it will cancel the trademark registration.
The author of this article: You Yunting, senior partner of Shanghai Dabang Law Firm and intellectual property lawyer. Tel: 8621-52134900, Email: [email protected], this article only represents the author’s opinion.