Can "anti-leg cramps" be trademarked?

Case
On February 25, 2019, law enforcement officers of the market supervision and inspection team in Fuyang County, Anhui Province, during daily supervision and inspection of a large pharmacy in Fuyang County, found that there were 5 boxes of Qiyu brand calcium chewing tablets in the pharmacy's health food counter. The packaging is labeled with the product name: Qiyu brand calcium chewing tablets, in this name directly above the label "anti-leg cramping" words; After approval, the law enforcement officials shall detain the person concerned on the grounds that he is suspected of operating food with labels and instructions that do not conform to the regulations.
, the pharmacy in October and December 2018 in two batches, a total of 10 yuan / box to buy a total of 10 boxes of the above-mentioned products, to 38 yuan / box sales of 5 boxes, the value of the value of 100 yuan, illegal income of 140 yuan. Law enforcement agencies believe that calcium chewing tablets belong to health food, approved health function is calcium supplementation, labeled "anti-leg cramps" words, suggesting therapeutic effect.
Because leg cramps are caused by a variety of factors, and may be a harbinger of disease, for health care function is only "calcium supplementation" food, "calcium supplementation can fight leg cramps" may mislead consumers, or even miss the treatment of the disease. The pharmacy, as a drug operator, should be familiar with the terminology of drug efficacy, the essential difference between food and medicine should also be clear, but the product has a clear hint of disease treatment words are not carefully examined, product labels, instructions claimed content, in violation of article 78 of the Food Safety Law "health food" The labels and instructions shall not deal with disease prevention and treatment functions, the contents shall be true, consistent with the contents of registration or filing, shall contain suitable populations, unsuitable groups, efficacy ingredients or iconic ingredients and their contents, etc., and state that 'this product is not a substitute for drugs'. The function and composition of health food shall be consistent with the labels and instructions".
In accordance with Article 125, paragraph 1, paragraph 2, of the Food Safety Law, "in violation of the provisions of this Law, the food and drug supervision and administration department of the people's government at or above the county level shall confiscate the illegal gains and illegal production and operation of food, food additives, and may confiscate the tools, equipment, raw materials and other articles used in illegal production and operation; A fine of five times the amount and not more than ten times the amount; if the circumstances are serious, the company shall be ordered to stop production and operation until the license is revoked: the production and operation of unlabeled prepackaged food, food additives or labels, instructions that do not conform to the provisions of this Law, the provisions of the Administrative Penalty Law and the relevant provisions of the Regulations on the Application of the Administrative Penalties for Food and Drug Administration of Anhui Province, and the Puyang County Market Supervision Bureau shall impose an administrative penalty of 5 boxes of illegal health food, confiscation of 140 yuan of illegal income and a fine of RMB 2000.
Dispute and Analysis
In the course of handling the case, the pharmacy filed a statement, claiming that the health food production enterprise had applied to the Trademark Office of the State Intellectual Property Office for the registration of the "anti-leg cramp" written trademark, and obtained the Trademark Acceptance Notice, which found that its conduct did not constitute an illegal act and requested immunity from punishment.
, the Puyang County Market Supervision Bureau held that the pharmacy, in presenting its defense, tried to cover up the violation under the guise of the Trademark Acceptance Notice, and that the reason for the request for immunity from punishment was not valid. The following reasons are as follows:
is that trademark acceptance does not equal registered trademarks. "Notice of Acceptance of Trademarks" is only the first notification document of trademark application, the first step of trademark application is formal examination, only to examine whether the documents submitted by the applicant, the description of the trademark drawings, the applicant's qualifications, etc. meet the requirements; Therefore, the Notice of Acceptance of Trademarks does not have legal protection for trademarks applying for registration.
second is that "anti-leg cramps" may not be registered as a trademark. Article 8 and Article 9 of the Trademark Law stipulates that any mark that distinguishes the goods of natural persons, legal persons or other organizations from those of others, including words, graphics, letters, numbers, 3D marks, color combinations and sounds, as well as the combination of the above-mentioned elements, may be registered as trademarks, and trademarks that apply for registration shall have significant features, be easy to identify, and shall not conflict with the legitimate rights obtained by others in the first place. "Anti-leg cramping" has no significant features, is a descriptive language and contains meanings for the functional use of the product, in clear violation of the trademark law, article 11, paragraph 1 , paragraph 2, "directly represents the quality of the goods, the main raw materials, functions, uses, weight, quantity and other characteristics" may not be registered as a trademark. At the same time, the State Administration of Market Supervision, in accordance with the guidelines for naming health food (2019 edition), provides that health food "trademark names, generic names shall not contain words that express or imply disease prevention and treatment functions..." It can be judged that the Trademark Office of the State Intellectual Property Office, when the substantive examination, the probability of rejecting the trademark application is greater.
is confusion over the use of the product's trademark. The health food has been labeled with the registered trademark "Nobijia", but also marked with "anti-leg cramps" unregistered trademark words, the same goods, both labeled registered trademarks, but also marked with unregistered trademarks, in violation of the Health Food Naming Guidelines (2019 edition) "a product is only allowed to use one trademark name" provisions, trademark use confusion, confusion of vision, misleading consumers.
and recommendations of
to rectify food, health food fraud and false propaganda is one of the key work of market regulators at all levels in recent years. From the health food cases investigated and dealt with in recent years, health food fraud and false propaganda are becoming more and more hidden, difficult to find, difficult to investigate.
in order to effectively combat this illegal act, the market regulator is to step up publicity efforts. Multi-channel, multi-channel collection and sorting of health food typical cases, take case interpretation, training and explanation to the vast number of operators to publicize health food industry regulations, remind them to comply with health food regulations, to ensure the authenticity and legitimacy of health food label content, etc. ; The second is to be familiar with laws and regulations. Food, health food fraud and false propaganda involve not only the relevant provisions of the Food Safety Law, but also the Trademark Law, the Measures for the Registration and Filing of Health Food, the Guidelines for the Naming of Health Food (2019 Edition) and so on. Law enforcement officials only know the corresponding laws and regulations and integrate through, in order to find illegal acts in the full range of health food special area counters, so as to effectively and accurately combat, protect the legitimate rights and interests of consumers, maintain market order.
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