Does the sign “eat clan people” carry an association with cannibalism and thus produce an “adverse effect”?

On 29 November 2017, an individual named Seng Lei (‘Seng’) filed an application (No. 27792495) in class 30 for food products to the Trade Mark Office of China (TMO). The sign consists of three Chinese characters (shown below), i.e. Hanzi: ‘食 (eat) 族 (clan) 人 (people)’. 

Kat’s preliminary side note: 

Considering the three Hanzi ‘食族人’ are written closely side by side without any interval symbol in between, the overall sign’s interpretations predictably varied (as shown in the table below). That is so because, unlike the English language’s alphabetic system, the Chinese language is character-based. Simply put, each Hanzi has its own pronunciation (could have more than one tone) and meaning (could have multiple meanings). Accordingly, the combination of several Hanzi in differing order could have vastly diverse meanings. This forms the basis of understanding the varied opinions regarding the ‘食族人’ sign. 

Seng v. the TMO 

On 20 February 2019, the TMO rejected the trade mark application (Decision [2019] No. 34784, ‘the TMO’s decision’) for violating Article 10.1(8) of the Trade Mark Law of China (TML, 2013 Amendment),* an absolute ground for refusal and invalidity that applies when a sign is ‘detrimental to socialist morality or mores or having any other adverse effect’. No further clarification on that point was provided by the TMO. Presumably the TMO took phrase segmentation c) of the table above. 

Seng then took the case to the Beijing Intellectual Property (IP) Court. 

First instance 

(Case reference: Administrative Judgement No. 5296 [2019], First, Administrative Division, 73, Beijing, of Beijing Intellectual Property Court) 

First, the conclusion: the Beijing IP Court perceived the sign at issue as per phrase segmentation a) in the table above, which thus had no ‘adverse effect’. Why the Court choose a) over b) and c) was certainly important to know. 

1. Regarding the sign per se 

The Court noted that the determination regarding ‘carrying adverse effect or not’ shall be made starting from the sign itself. The benchmark is the general public’s perception, which is confirmed by ‘dictionaries, reference books or other official publications or the credible information carriers that can be widely contacted by the public’. 

According to that, the Court found ‘食族人’ not to be a standard, recognised phrase, so its meaning will not be universally understood per the language and cultural habits of the general public: 

According to the interpretation of the Xinhua Dictionary, the common meaning of ‘食’ is ‘eating’. The common meaning of ‘族’ is ‘clan’, a collective term for people who live together and have blood relations or things having common attributes; or metaphors having common characteristics. The expression of ‘族’ and the ‘人’ in the disputed sign overlap in meaning. (emphasis added) 

In view of the above, the Court perceived ‘食族人’ as ‘People who have common traits in eating’, which from its meaning per se, did not constitute an ‘adverse effect’. 

2. Horrifying association? 

In explaining what the ‘adverse effect’ carried by the sign at issue was, the defendant, China National Intellectual Property Administration (CNIPA),** argued that the sign could be easily associated with cannibals (as in phrase segmentation c) of the table above). The Court cited the position previously taken by the Beijing High People’s Court in another case (Administrative Judgment No. 231 [2018], Final, Administrative Division, Beijing, of the Higher People’s Court of Beijing Municipality): 

For the understanding of signs or their constituent elements, it is necessary to avoid placing non-general meanings on them based on external factors such as occasion and context, or through deduction or association, etc. Because that would improperly limit the creative space that belongs to free expression in business operations, and it is also not conducive to the positive guidance to the country’s socialist moral culture. 

Then, the Beijing IP Court weighed in on two aspects. The first aspect was whether the sign’s extended meaning had an “adverse effect” and how broad the ambit of it could be: 

The extended interpretation should be reasonable. It should not deviate from the meaning of the sign itself and should not add additional negative meaning to the sign without basis.

The Court pointed out that the phrase segmentation c), i.e. rearranging the three Hanzi, went too far: 

‘Cannibals’ is an interpretation made after rearranging the words of the sign in dispute, which has exceeded the reasonable scope of extended interpretation of the sign. This judgment, based on the misrecognition and reading of the Hanzi, unreasonably limits the free expression space in the commercial use of trade marks, and is also not conducive to the standardized use of language and the positive guidance of social culture. 

The second aspect was whether there was evidence to prove that, under the current cultural cognition, the general public was likely to associate that sign with adverse influencing factors. The Court deemed the defendant who claimed the sign could be easily associated with ‘cannibals’ shall thus bear the burden of proof. However: 

In this case, the defendant did not submit evidence to prove that under the current language and cultural cognition, the general public would associate the disputed sign with ‘cannibals’ based on universal cognition. Nor has it fully and reasonably explained the speculation of this possible association. 

Therefore, the Court found the claimed association unsubstantiated. 

3. Evidence of using the sign 

Seng submitted massive evidence of using the disputed sign during 2018 and 2019. The Court noted that the ‘adverse effect’ of a sign could not be eliminated via usage. However, the sign per se, as afore-analysed, was not of ‘adverse effect’. Its use after the trade mark application date could thus be evidence in examining the meaning or information that the sign carried in actual use: 

In this case, the massive evidence presented by Seng showed that his noodle products carrying the sign at issue had been sold in many popular e-commerce companies and supermarkets across China, and the sales volume was relatively large. Noticeably, there had been no negative comments regarding the sign at issue in the evaluation of buyers on the online sales platform. Taking into account other publicity and use evidence, the disputed sign on the fast food products to which it was designated had no adverse effects in actual use either. 

In summary, the Court held that, regarding the disputed sign itself, or in combination with its actual use, there was no ‘adverse effect’ as described in Article 10.1(8) of the TML. The defendant’s decision towards the accused was wrong, and the Beijing IP Court corrected it. 

Dissatisfied with the ruling, the CNIPA appealed to the Beijing High People’s Court. 

Second instance 

(Administrative Judgment No. 3627 [2020], Final, Administrative Division, Beijing, of the Higher People’s Court of Beijing Municipality) 

The Beijing High People’s Court upheld the judgment of the Beijing IP Court. Additionally, it noted that using Article 10.1(8) as an absolute ground for refusal of trade mark registration and its use in commerce had a substantial impact on the rights and interests of trade mark applicants. As such, it should be applied prudently. 

The Beijing High People’s Court then reiterated the steps to examine similar cases: Usually, when the daily life experience of the public, or the official documents such as dictionaries and reference books, could determine that a sign or its constituent elements may have a negative effect on the public interest or public order, the sign would be deemed as carrying the ‘adverse effect’ prohibited by the TML. The subjective intentions, manners of use, or damage to the parties could be factors for reference. 

When a sign’s overall intrinsic meaning does not cause a negative impact on the public nor the public order concerning politics, economy, culture and ethnicity, etc., and the public discourse does not suggest negative impacts, the accusation of ‘adverse effect’ must be supported by corresponding evidence or sufficient reasons.

In summary, the Beijing High People’s Court maintained the judgment made by the Beijing IP Court. 

Comments 

In a previous IPKat post (here), this Kat discussed the ‘adverse effect clause’ of the TML: 

The connotation and extension of the ‘adverse effect’ concerns subjective values and is not cut and dry. Its interpretations might be subject to cultural background, personal experience and the values they hold. 

While the ‘食人族’ case adds to the continuation of the ‘adverse effect’ topic, it is good to see that, this time, the balance has been somehow tilted towards the trade mark applicant’s side, with clear instructions provided. When the ‘adverse effect’ of a sign per se has not yet been reflected in dictionaries, reference books and other official publications, yet the examiners subjectively believe otherwise, sufficient explanations and evidence could be requested by courts. 

Although uncertainties will probably always exist when it comes to subjective interpretations regarding languages (‘Words are the source of misunderstandings’ – Antoine de Saint-Exupéry, The Little Prince), the growing number of cases will hopefully lead to increased certainty. This Kat will keep an eye on the developments within this intriguing topic and keep our IPKat readers informed.

*: The newest Trade Mark Law of China is the version amended in 2019. The case this post is discussing concerned the 2013 Trade Mark Law Amendment.

**According to the reform and deployment of the central government, the relevant duties of the TMO of the former State Administration for Industry and Commerce are now performed by the CNIPA.