Trademark naming is a technical activity, and one careless move may lead to a total loss. Before applying for trademark registration, if the enterprise can make a pre judgment on whether the mark is deceptive, and correct the deceptive elements, it will help reduce the risk of trademark rejection.

Cigarettes cannot use "longevity" as a trademark, medicines cannot use "omnipotence" as a trademark, and clothing cannot use "healthy colored cotton" as a trademark... How can there be so much attention in the naming of trademarks? Of course, although the trademark is the key for enterprises to enter the market, the naming should not be arbitrary, or the gold brick may hit the enterprises themselves.

Step 1: Determine the relevant public of goods or services

What is deceptive?

The second half sentence of Item (7) of Paragraph 1 of Article 10 of the Trademark Law "is likely to cause the public to misunderstand the quality and other characteristics of the goods or the origin". It can be seen that "the public" is the subject of deceptive judgment.

The question is, does the "public" here refer to the "relevant public" or the "social public"? Obviously, people's understanding of deception will be different due to their different cognitive level, purchase experience, etc., and the conclusions may be far from each other if different subjects are used as the judgment subjects of deception.

The deceptive judgment does not take into account the subjective will of the trademark applicant. Even if the applicant claims that the logo has no actual meaning, nor is it used to describe the relevant attributes of goods or services, as long as the logo is objectively easy to lead to misunderstanding by the relevant public, it constitutes the situation specified in Item (7), Paragraph 1, Article 10 of the Trademark Law.

Step 2: Combine the goods or services indicated by the logo

According to the structural system formed by the overall structure of the Trademark Law, the first paragraph of Article 10 of the Trademark Law is an absolute clause prohibiting the use of trademarks. According to this logic, when judging whether the sign constitutes fraud as specified in item (7) of this paragraph, does it not need to consider the goods or service categories designated for use of the sign, but only consider whether the sign itself can cause deception and misleading?

The answer is no. Only when signs are combined with goods or services can they produce the function of identifying sources. Deceptive judgments must be based on goods or services. Leaving aside the goods or services designated by the logo, deceptive judgment will become a tree without water and roots.

"Fraudulent", specifically, means that the words and graphics of the trademark mark cover up the truth of the goods used in the mark in terms of quality, main raw materials, function, use or origin, which is enough to make the public have a wrong understanding of the truth of the goods.

It can be seen that whether the sign is deceptive is relative to the truth about the characteristics of the goods or services used in the sign. It is difficult to determine whether the logo itself is false or misleading if it is separated from the goods or service categories designated for use.

Even if the same sign is used in different goods or services, the conclusion of whether it is deceptive is different. If the trademark in dispute in this case is used on other goods or services such as clothing, computer software, etc., it is difficult to determine that it is deceptive. Therefore, the judgment of fraudulence must be based on the goods or services referred to by the sign.

Step 3: draw conclusions

Based on the general cognitive level and cognitive ability of the relevant public, and in combination with the goods or service categories designated to use the logo, we can review whether its meaning and content are consistent with the attributes of the goods or services themselves, and draw a conclusion whether the logo is deceptive.

Is it necessary to consider the use of the trademark in dispute when making fraudulent judgments? Some people believe that the use of signs can play a role in information transmission, and the relevant public may gradually realize the true situation of the goods or services they refer to, thereby eliminating the deceptive nature of the signs themselves.

In fact, the first paragraph of Article 10 of the Trademark Law, as a direct embodiment of the principle of public order and good customs in the Trademark Law, relates to the overall interests of the country and society, and is the minimum requirement of the Trademark Law for signs to be used as trademarks.

Different from damaging the prior rights and interests of specific persons, the deceptive signs specified in Item (7), Paragraph 1, Article 10 of the Trademark Law are likely to mislead the relevant public, directly damage the legitimate rights and interests of unspecified persons and endanger the market economic order because their descriptions are inconsistent with the characteristics or origin of goods or services.

Allowing such signs to eliminate deception through use will increase consumers' early search costs, reduce consumers' trust in brands, and affect the normal market competition order, with more disadvantages than advantages. Therefore, deceptive signs cannot be used to remove registration barriers.

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