Trademark application "Yami Kawai" not registered - trademark without distinctiveness
The following blog came to my attention that the trademark "Yami Kawai" was not registered.
Regarding Bisuko Ezaki's "Yami Kawai" trademark application controversy
On March 11, 2019, it was revealed that Bisuko Ezaki, an illustrator who has been under fire for various tweets since March 4, 2019, had applied for a trademark for the genre in which she works, "Miki Kawai" in 2017. It was revealed around 11pm.
The above content is quoted from the blog at the following URL
https://ameblo.jp/fakepioneer-yamikawaii/entry-12451670484.html
This blog covers the reaction to this uproar on Twitter.
If anyone other than Bisuko Ezaki used the word #Yami Kawai, it would be a red card because of trademark registration. I thought it was a genre too. I don't know much about this genre, but I'm sure there are many people who recognize it as a part of Japanese culture, and if this is truly a culture, it will only decline in the future.
I'm glad that Bisuko Ezaki's attempt to register #Yami Kawai as a trademark was rejected, but I still think she's rotten. Even if it's not registered as a trademark, the fact that it was attempted and humanity remain the same.
It seems that many people were against the idea of monopolizing the word "sickly cute" as a trademark.
What does "Yami Kawai" mean?
I wanted to know if "Yami Kawai" was a coined word or a word that is widely used in general, so I asked Google's generation AI.
I didn't know this word "Yami Kawai".
``Yami Kawai'' is a derivative genre of ``Yume Kawai'' which was popular around 2013. Yume Kawaii is attracting attention both domestically and internationally as a new form of kawaii culture that incorporates elements such as ``sick'', socially taboo elements, and violent elements.
``Yami Kawai'' expresses the negative emotions, madness, and mental pathology that lurk in the shadows of cuteness, and is based on motifs that women like, such as pastel colors and sailor uniforms.
"Yami Kawai" fashion is cuteness and darkness in the heart "Sickly Kawaii" is a genre derived from "Yume Kawaii" which was popular around 2013. Yume Kawaii is attracting attention both domestically and internationally as a new form of kawaii culture that incorporates elements such as ``sick'', socially taboo elements, and violent elements.
``Yami Kawaii'' expresses the negative emotions, madness, and mental pathology that lurk in the shadows of cuteness, and is based on motifs that women like, such as pastel colors and sailor uniforms.
``Yami Kawai' fashion is a style that combines cuteness and darkness, and uses girlish designs such as frills, chiffon, and ribbons, as well as motifs such as gas masks, syringes, and bandages that make it obvious that someone is sick at a glance. . The colors are often pastel to express cuteness, chic black, and red.
The image of "Yami Kawai" is as follows.
The images below are taken from the URL below.
https://dic.pixiv.net/a/%E7%97%85%E3%81%BF%E3%81%8B%E3%82%8F%E3%81%84%E3%81%84
病みかわいいのイメージ
Although the girl is cute, she carries a utility knife and gives the impression that she is mentally ill.
I see, I thought this is what "Yami Kawai" meant.
This trademark application for "Yami Kawai" has been refused.
I was interested, so I requested to see the examination record of the trademark application for the trademark "Mikumi Kawai" (Commercial Application No. 2017-055042), and requested a notice of reasons for refusal and a written opinion.
What are the reasons for rejecting the trademark application “Sickly Kawaii”? →Trademark with no distinctiveness
Contents of notification of reasons for refusal
Below is the content of the notification of reasons for refusal.
The trademark related to this trademark registration application (hereinafter referred to as the "Applicable Trademark") is a font that expresses the words "Yami Kawai" in a commonly used font. The word ``Yami Kawai', which is a combination of the words ``and cute'', is used to mean ``sick and cute''. In the fashion industry, the character ``Yami Kawai'' is commonly used and familiar as a word that indicates a genre.
In this case, even if the trademark is used for the specified product, the consumers and traders who come into contact with it will only recognize that the product is a product that corresponds to the above genre, and this will lead to customer attraction and sales of the product. It can only be understood that the trademark represents one of the catchphrases for promotion, and since the characters are used in various media as shown below, the trademark in question is a product related to the business of several consumers. I accept that it is not possible to recognize that
Therefore, the trademark in question falls under Article 3, Paragraph 1, Item 6 of the Trademark Act.
The examiner recognized the trademark ``Miki Kawai'' as a trademark without distinctiveness.
Discrimination is the ability of a name to distinguish a product or service from other identical products or services.
The notice of reasons for refusal lists six statements on the website as follows. I will introduce two of them below.
1. On the "Column" page of "Excite.News", it says, "The reason why the sickly and weak "Sickly Kawaii" is popular among young women...The "Yume Kawaii" worldview that we have been hearing a lot lately. It is further derived from that. ``Yami Kawai'' seems to be gaining popularity among young women.Recently, accessories with the concept of ``Yami Kawai'' such as bracelets and necklaces with lots of medicine capsules on them have also become popular.
I am collecting. ” is written there.http://www.excite.co.jp/News/lifestyle/20150211/Hanakuro_18029.html
2. The Da Vinci News website states, ``Pre-orders now open for the Yami Kawai ``Menhera-chan'' x Harajuku ``PARK'' collaboration item!... ``Menhera-chan'' is currently explosively popular among young women. 2013 University Entrance Examination This character attracted attention when Bisuko Ezaki, who was preparing for her upcoming wedding, posted a doodle on Twitter to escape from reality.The character draws attention to the characters, including heavy elements such as "mental health" and "wrist cuts", which have become social issues in recent years. She wears a sailor suit with pink twintails and a cute visual that captures the hearts of women who like subculture and the unique, same-sex fashion that appeals to the same sex.She sparked a genre called ``Sickly Kawaii.'' It has become a useful role.''
https://ddnavi.com/news/244227/a/
Submit a written opinion
In response to the notice of reasons for refusal stating that the trademark application "Sickly Kawaii" lacks distinctiveness, the applicant has submitted a written opinion with the following content.
Contents of written opinion
First of all, we are the same person as ``Bisuko Ezaki'', the creator of ``Menhera-chan'', the character who became the reason for the spread of ``Sickly Kawaii'' to the world, which was cited by the JPO examiner in the notice of reasons for refusal. there is.
*You can confirm this because it has the same name as trademark registration number 5736599. In 2013, at the same time as "Menhera-chan" was born, we invented the phrase "sickly kawaii" and spread it around the world through product development, and as a result of these activities, it has become the widely recognized genre it is today.
This was well over two years before the "column" of "excite. News" cited by the Patent Office Examiner was published.
The details of this fact are also described in Bisuko Ezaki's blog entry ``About Sickly Kawaii''.
The application was filed this time because a wrong explanation was given in the media that significantly undermined the definition of the "Yami Kawai" genre.It is a pioneer, and a trademark is one that can provide an accurate explanation when asked about its meaning. Because I felt that I needed to manage it.
As stated above, I believe that the trademark in question does not fall under Article 3, Paragraph 1, Item 6 of the Trademark Act, so I would like to ask the examiner to examine the application again and approve the trademark in the application. We appreciate your understanding that the trademark should be registered.
What is clear from this written opinion is that the applicant for the trademark ``Yomi Kawai'' is Bisuko Ezaki (pen name), who popularized the word ``Yomi Kawai.''
This will result in a rejection decision.
The applicant's counterargument in the written opinion was also in vain, and the trademark application ``Miki Kawai'' was rejected.
Contents of decision of refusal
Regarding this trademark registration application, it has been determined that the trademark cannot be registered because the reason notified on August 24, 2017 (Article 3, Paragraph 1, Item 6 of the Trademark Act) has not been resolved. It has arrived.
In a written opinion submitted on September 1, 2017, the applicant argued that the trademark in question does not fall under the above-mentioned grounds because the applicant himself was the one who popularized "Sickly Kawaii" to the public. However, as the applicant acknowledges in the written opinion, the trademark term "Sickly Kawaii" has become widely recognized as a genre/concept of fashion and accessories.
In addition, 1. stated in the notice of reasons for refusal. and 4. ~6. According to , there are cases where products claiming to be ``Yami Kawai' are being sold by parties other than the applicant.
In this case, even if the applicant himself came up with the word "Sickly Kawaii" for the Applied Trademark, the word is already commonly used and familiar as a word representing one of the genres in the industry that handles the products designated by the Applied Trademark. This is the reality, so even if the trademark in question is used for the designated goods, it is recognized that the trademark in question is a trademark that does not allow consumers to recognize that it is a product related to the business of some person.
Therefore, the previous finding that the trademark in question falls under Article 3, Paragraph 1, Item 6 of the Trademark Act cannot be overturned.
Explanation by a patent attorney
The timing of judgment regarding Article 3, Paragraph 6 of the Trademark Act (trademarks without distinctiveness) is at the time of assessment and trial decision.
The applicant claims in the written opinion that in 2013, he invented the term ``Yami Kawai'' and spread it around the world through product development, and that as a result of his activities, it has become the widely recognized genre it is today. Masu.
In addition, the trademark "Yami Kawai" was applied for on April 7, 2017, the reasons for refusal were notified on September 1, 2017, a written opinion was submitted on September 6, 2017, and the application was filed on February 23, 2018. It was rejected on the same day.
In 2013, the word "Yami Kawai" was not widely known, but by the time of the assessment, February 23, 2018, it had become a widely known word on the internet. I was there.
The applicant claims that he proposed the idea in 2013, four to five years before the appraisal, and that "Yami Kawai" was not widely known at that time.
In the written opinion, the applicant admitted that it has now become a widely recognized genre, saying, ``By promoting product development, it has spread to the world, and as a result of those activities, it has become a genre that is widely recognized as it is today.'' It's gone.
In other words, the applicant claims that the word "Yami Kawai" is a word that represents a genre that is widely recognized at the time of examination, so it is completely unwarranted as an argument against the notice of reasons for refusal. I have to say.
The trademark application for "Sickly Kawaii" was filed by the applicant himself, and no agent such as a patent attorney was involved.
If a patent attorney had submitted a written opinion, the written opinion would not have been the same as the applicant's, but in this case, no matter how you argued in the written opinion, it would have been difficult to obtain a decision to register. think.
This is my opinion, but examiners at the Japan Patent Office believe that it is not a good idea to allow a single private person to monopolize words that represent a genre that is widely known to the general public and that can be found in large numbers when searched on the Internet. , there may be a psychological resistance to granting registration for such a trademark, and in cases where the examination standards are at the very limit, there may be a force in the direction of refusing the trademark.
Of course, there must be a legal basis for refusing an application.
Words representing genres that are widely known to the general public and that come up in large numbers when searched on the Internet are recognized as trademarks without distinctiveness (Article 3, Paragraph 1, Item 6 of the Trademark Law).
If the applicant, who is the inventor of the trademark "Bikomi Kawai", had applied for the trademark "Bikumi Kawai" in 2013, when he himself invented the trademark, I believe that it would have been registered.
Because he himself spread the word ``Sickly Kawaii,'' he was unable to obtain trademark rights.
About the trademark “Dejikame”
Changing the topic, "Dejikame" was a registered trademark of Sanyo Electric.
The trademark "Dejikame" was applied for by Usys Corporation in 1985, registered in 1988, and the trademark rights were transferred to Sanyo Electric in 1999.
The trademark rights to the trademark "Dejikame" expired on March 27, 2019 due to non-payment of the renewal fee.
Nowadays, the word "Dejikame" is commonly used as an abbreviation for "digital camera." It will definitely be rejected as a trademark consisting only of a mark that displays (including) in a commonly used manner (Article 3, Paragraph 1, Item 1 of the Trademark Law).
I believe that I was able to register the word "Dejikame" as a trademark because I applied for a trademark for "digital camera" in 1985, when the word "digital camera" was not commonly used.
summary
(1) Words that represent genres that are widely known to the general public and that result in many hits in an Internet search will be rejected as trademarks that lack distinctiveness (Article 3, Paragraph 1, Item 6 of the Trademark Law).
(2) If the word is spread to the extent that it is recognized as a genre, it will not be possible to obtain trademark rights, so if you wish to obtain trademark rights, you should apply for a trademark before it becomes established as a word that represents champre.
