The Appeal Board of Japan Patent Office (JPO) refused Trademark Application No. 2017-11978 for a device mark consisting of five interlaced heart shape logos for goods of clothing and footwear in class 25 because of similarity to Olympic rings based on Article 4(1)(vi) of the Japan Trademark Law.
Heart shape device mark
Mark in question ( see below) was filed on February 6, 2017 by designating goods of clothing, footwear, masquerade costumes, clothes for sports in class 25.
Article 4(1)(vi) of the Trademark Law
The JPO examiner refused the mark by citing the Olympic Rings based on Article 4(1)(vi) of the Trademark Law.
Article 4(1)(vi) is a provision to refuse any mark which is identical with, or similar to, a famous mark indicating the State, a local government, an agency thereof, a non-profit organization undertaking a business for public interest, or a non-profit enterprise undertaking a business for public interest.
JPO trademark examination guidelines clearly refer to the Olympic Symbol as an example of the mark to indicate a non-profit business for public interest.
The Olympic symbol, widely known throughout the world as the Olympic Rings, is the visual ambassador of Olympic for billions of people.
The Olympic symbol is defined in Olympic Charter, Rule 8 as
“The Olympic symbol consists of five interlaced rings of equal dimensions (the Olympic rings), used alone, in one or in five different colours. When used in its five-colour version, these colours shall be, from left to right, blue, yellow, black, green and red. The rings are interlaced from left to right; the blue, black and red rings are situated at the top, the yellow and green rings at the bottom.”
The Olympic Rings, publicly presented for the first time in 1913, remain a global representation of the Olympic movement and its activity.
Appeal Board decision
In an appeal, the Board sustained examiner’s refusal and decided the mark in question shall be refused on the same ground.
The Board stated that mark in question has same configuration with the Olympic Rings, inter alia, depicting horizontally three heart shape logos on an upper row and two on a lower row, and thus consumers at the sight of the mark are likely to conceive or connect it with a well-known Olympic symbol from appearance.
[Appeal case no. 2018-3425, Gazette issued date : December 28, 2018]
Masaki MIKAMI, Attorney at IP Law – Founder of MARKS IP LAW FIRM