[Summary of Contents] The form of a trademark is a symbol, but only the symbol that serves as a reference to market reputation is a trademark. The purpose of trademark law is to protect market reputation, not to protect empty symbols. There has been a serious phenomenon of symbolic enclosure in our country. The so-called "symbol enclosure" is the actual monopoly of symbols in the name of trademark rights. There are two main categories of manifestations: 1. Enclosure of symbols during registration; 2. Enclosure of symbols during exercise of rights. The four major flaws in my country's trademark rights remedy system are the root causes of the system's connivance with symbol enclosure: 1. Excessive superstition in the effectiveness of trademark registration; 2. Excessive indifference to the effectiveness of trademark use; 3. Misestimation of the value of symbols; 4. Confusion about the use of trademarks and symbols. Only by reshaping the trademark rights relief system and making it unprofitable for sign enclosures can we truly curb the enclosure of symbols.
[Keywords]Relief for enclosure of trademark symbols
[Text]
1. Trademarks and symbols
Intellectual property law theory , intellectual property rights are the sum of intellectual achievement rights and commercial mark rights. This definition with traces of enumeration leaves a logical question: Why should these two rights be summed up in one place and named "intellectual property rights"? There is an essential difference between commercial marks and intellectual achievements, and the former is subject to Legal protection does not require any intellectual requirements (such as originality or creativity), nor does its value come from its own intelligence. In other words, why are non-intellectual achievements and intellectual achievements grouped into the same legal domain? The answer lies in: the form of trademarks and intellectual achievements are both symbols. For the property system, the most valuable factor is the form of the property. Similar forms of property lead to similar behaviors in utilizing property, and similar norms can be applied to similar behaviors [1]. Because intellectual achievements and trademarks have similar forms, similar norms can apply to behaviors governing intellectual achievements and trademarks. These norms are summarized as Uniform intellectual property laws.
Human intellectual achievements are manifested in form as symbols. Symbols are artificially created signals with a referential function. The so-called human creation is the act of constructing a symbolic world outside the natural world. As Cassirer said: In language, religion, art and science, all man can do is to build his own universe, a universe that enables human experience to be understood and explained, connected and organized, synthesized and universalized by him. ized universe of symbols. ?Human knowledge is by its nature symbolic knowledge. ?[2]Obviously, a trademark is a mark and a symbol. The completely different symbolic forms are the logical basis that trademarks and intellectual achievements are both intellectual property objects. Whether the constituent elements of a trademark are words, colors, lines, or sounds and works, they all appear as "symbols" in form.
However, trademarks and intellectual achievements are similar but mysterious, and they each play different functions of symbols. Symbols have two basic functions. One is the referring function. In this sense, a symbol is equal to a mark. It exists to represent another thing. This is the initial function of a symbol. For example, a small bridge refers to a transportation facility. The second is the creative function. Symbols can be combined to construct new forms, such as "pink memories". This phrase does not refer to any factual state. A trademark is not an ordinary symbol, but a symbol that always functions as a reference. Its value always comes from the origin of the referent, the product or service. Therefore, the symbolic form of a trademark itself does not have independent value. Intellectual achievements are symbolic forms with independent value and no longer serve any referent. As Susan Lange said, artistic symbols are a somewhat special symbol because they have certain functions of symbols, but It does not have all the functions of a symbol, especially it cannot replace another thing as a pure symbol, and it can also be related to other things that exist outside itself? [3]. Symbols of intellectual achievements have gained independence, The symbol of a trademark can never be independent. Once it is independent of commercial reputation, it is worthless.
To sum up, the shape of a trademark is a symbol, and the spirit of a trademark is the business reputation hidden behind the symbol. A symbol is not a trademark if it does not exist as a representation of the origin of goods or services.
2. Symbol Enclosure Phenomenon
The so-called symbol enclosure phenomenon is the practice of symbol monopoly in the name of trademark rights. This is a growing phenomenon in our country in recent years.
The phenomenon of symbol enclosure has two main forms: one is to use the registration system obtained by trademark rights to register a symbol as a "trademark" without any real intention to use it, and then rely on the symbol monopoly to claim "rights" from others. This behavior can be called "symbol enclosure in registration". For example, in the "trademark supermarkets" that are booming in various places, most of the trademarks for sale are empty symbols registered specifically for sale, and have never been truly combined with goods or services. The second is that the trademark owner has expanded the scope of trademark rights to "symbol rights". As long as others use the same symbol as their own trademark, regardless of whether the use is in the sense of a trademark, they will claim "infringement" by others. This type can be called "symbolic enclosure in the exercise of rights". For example, Xohua Electronics Company registered the trademark "chdtv" on the TV. "hdtv" is the English abbreviation of "high definition television" (highdefinitiontelevision). Changhong Electric Company marked "hdtvready" on the packaging box of the TV set, which was The Chinese company sued for infringement. Obviously, Changhong Company's use of the "hdtv" symbol is based on the original meaning of the symbol, "high-definition television." At this time, the "hdtv" symbol is not a stand-in for Xohua Company's reputation, so it is not a trademark. Xohua Company claimed the so-called rights on the grounds that the "hdtv" symbol is similar in appearance to its own trademark "chdtv". In fact, it extended the trademark rights to the exclusive monopoly of the "hdtv" symbol.
At present, more and more symbol enclosure behaviors combine the characteristics of the above two types, that is: choosing a symbol commonly used in commercial activities to register as a trademark, the purpose of registration is not to use, but to It lies in obstructing others from normal use of the symbol in the name of trademark rights. This kind of behavior has the characteristics of the above two types: 1. The purpose of registration is not to use, so the symbol has never acquired the essence of the trademark; 2. It obstructs others from using the pure symbol, and the behavior of others does not constitute trademark in the sense of Use, and the trademark owner also unreasonably asserts its rights. Therefore, there is both enclosure in the process of registration and enclosure in the exercise of rights.
No matter what kind of symbol enclosure behavior, it distorts the function of the trademark system. Society pays huge legislative, judicial and law enforcement costs, not to protect pure symbols, but to protect business reputation. The rise of the symbol enclosure phenomenon has tempted some companies not to devote themselves to establishing market reputation, but to take opportunistic choices in symbol selection. On the one hand, it is a small profit for the landowners (the only cost is the trademark registration fee), and on the other hand, it is the innocent users who are honest. Just like the phenomenon of "sheep cannibalizing people" during the British enclosure movement, the negative consequences of "symbols cannibalizing enterprises" emerged under the enclosure of symbols. It is human nature to pursue interests, and seeking interests through symbolic enclosure has become a "strange current situation in China", and it must have its own unique institutional soil. Everyone in the legal world has the obligation to improve the system. It is not enough to satirize the weaknesses of human nature. It is also necessary to improve the system to "transform".
What is certain is that legislative flaws and cognitive barriers are the two root causes of the phenomenon of symbolic enclosure. The so-called legislative flaw refers to my country's overly loose registration doctrine. The registrant does not need to actually use the trademark, nor does it need to prove its intention to actually use it, before it can apply for registration. Therefore, symbol enclosure is very easy and low-cost. At the same time, the Trademark Law of the People's Republic of China (hereinafter referred to as the "Trademark Law") lacks flexible prohibitions on preemptive registration that violates the principle of good faith. It only stipulates that applying for trademark registration shall not damage the existing trademark rights of others. You must not have prior rights, nor should you use unfair means to preemptively register a trademark that is already used by others and has a certain influence? At present, some professional symbol collectors specialize in registering famous unregistered trademarks in small towns, making it difficult for victims to prove that they have a certain impact. Some registration behaviors clearly violate the principle of good faith based on individual cases (for example, the registrant has some special connection with the actual user, and the registrant knows that others have used it before), but they may not meet the conditions of having a certain impact. In addition, the Trademark Law does not stipulate the right of prior use, so the contest between those who enclosure the symbol and the honest users often ends in the victory of the enclosure owner. Therefore, legislative flaws are an important institutional source of "symbolic enclosure in registration".
Cognitive impairment is an important source of "symbolic enclosure in the exercise of rights".
As mentioned before, the form of a trademark is a symbol. The relationship between a trademark and a pure symbol requires a certain amount of abstract thinking ability to grasp. People tend to confuse symbols and trademarks in perception. The trademark owner sees a certain symbol and himself. If your trademark is similar, you mistakenly believe that someone else is using your trademark. It is difficult for non-professionals to distinguish what is "use in the sense of trademark". Although there is no lack of intentional expansion of rights, cognitive impairment is an important reason for "symbolic enclosure" in the exercise of rights.
However, the two factors of legislation and cognition are not the focus of this article. The revision of legislation does not happen in a day, nor does the progress of cognition happen overnight. The idea of ????this article is: how to curb the phenomenon of symbolic enclosure by improving the trademark right relief system. Without relief, there is no right. If we do not mistake "trademark protection" for "symbol protection", and make those who enclosure the symbol realize that the land they enclose is unprofitable, the enthusiasm for enclosure will naturally be reduced. Therefore, by improving the remedy system for trademark rights, on the one hand, it can make up for the shortcomings of legislation, and on the other hand, it can guide trademark owners to correctly understand the scope of their rights. This is the closest path to governance of symbolic enclosure.
3. Misunderstandings of the trademark right relief system: promoting symbol enclosure
(1) Excessive superstition on the effectiveness of trademark registration
Trademark right is a civil right , trademark registration is a public way of obtaining rights and has high credibility. Therefore, for registered trademarks, it should first be presumed that the rights are valid. However, this does not mean that the validity of registered trademark rights is unquestionable, and any presumed validity of rights can be overturned. If there is clear evidence that the trademark registration was done in bad faith, the credibility of the trademark right can be overturned. Japanese scholars believe that if a trademark is registered in bad faith, there is no substantial reason to conclude that the trademark should be given legal protection just because it has been registered, because this kind of exercise of rights is an abuse of rights [4]. Moreover, trademark registration The review mainly focuses on whether the symbol composition of the trademark is legal. A large number of illegal reasons cannot be tested during the review stage. Therefore, the credibility of trademark registration is limited. The main probative power is limited to the legality of the symbol composition of the trademark. As for whether the registration of a trademark infringes upon prior rights and violates the principle of good faith, it is difficult to find out during the review stage, so the registration itself cannot guarantee it. In short, trademark registration is not an absolute proof of legality. However, my country's judicial and law enforcement agencies often misunderstand registered trademark rights as "rights granted by administrative agencies" and believe that their validity is unquestionable and should be "protected". An investigation revealed that a company specializes in registering trademarks that are similar to unregistered trademarks used by others. The company claimed: Once we obtain the trademark registration certificate, we will report it to the industrial and commercial department in accordance with Article 52 of the Trademark Law. Reporting the other party's infringement is basically a one-time report. ?[5] The rights relief department’s superstition about the effectiveness of registration, coupled with loose registration conditions, will undoubtedly attract more people to register for symbol enclosure, and even encourage more covert malicious registration behaviors. The original intention of the registration system was to strengthen the stability of rights and reduce conflicts of rights. However, due to the misunderstanding of rights relief agencies, registration has become a "money laundering procedure" for malicious land enclosures.
Unfortunately, the Supreme People's Court of my country put forward this principle in a reply:? For disputes involving conflicts of exclusive rights to registered trademarks involving disputes over the authorization of registered trademarks, inform the plaintiff to report to the relevant administrative authorities The application will not be accepted by the People's Court. ?If two registered trademarks are objectively likely to cause confusion, the registrants registered in good faith, and neither party is at fault, it is not appropriate for the court to determine infringement, and it is very reasonable for the registration authority to cancel the registration of one party for the purpose of protecting consumers. However, if a registrant has obvious bad faith, the registration itself constitutes an infringement. Why does the court not grant relief? The principle established in the letter delays the procedure for legal rights holders to obtain relief, making "registration" part of bad faith. The protective umbrella of the parties will undoubtedly attract more registration enclosure behaviors.
(2) Excessive disregard for the effectiveness of trademark use
What gives a symbol the essence of a trademark is actual use. Through continuous commercial use, consumers gradually associate a symbol with the source of specific goods or services, and only then does the symbol truly grow into a trademark. However, the judiciary often places too little emphasis on use and emphasis on registration in relief proceedings.
In the case of Shanxi Province Fangshan County Lao Traditional Company v. Shanxi Xinghua Village Fenjiu Company①, the plaintiff registered the "Jiajia" trademark on liquor, but never actually used it. Before its registration, the defendant had already produced the Northern brand "Jiajiajiu", and the plaintiff and defendant had negotiated joint venture matters. The trademark applied for registration by the plaintiff is basically consistent with the trademark actually used by the defendant in terms of symbol composition. The plaintiff claimed that the defendant's behavior of selling "Jiajiajiu" infringed on its trademark rights. It is easy to see from the contact history of the plaintiff and the defendant and the consistency between the plaintiff’s registered trademark and the trademark used by the defendant that the plaintiff’s registration was obviously done in bad faith. The plaintiff only carried out symbol enclosure, and the defendant used the trademark honestly. It was the defendant's production and sales that made "Jiajia" truly a trademark. How should the interests of the two be weighed, combined with the legislative purpose of the Trademark Law to protect market reputation? It’s not hard to make the trade-off. However, the first-instance judgment clearly stated: The use of a trademark does not necessarily generate exclusive rights to the trademark. A trademark can only be protected after registration. ?It is conceivable how inducing this sentence will be for those who are interested in symbol enclosure.
(3) Misestimation of the value of symbols
Article 56 of the Trademark Law stipulates: The amount of compensation for infringement of the exclusive right to use a trademark shall be the amount of compensation caused by the infringer during the period of infringement. The benefits gained from the infringement, or the losses suffered by the infringed party due to the infringement during the period of infringement, include reasonable expenses paid by the infringed party to stop the infringement. ?In judicial practice, because it is often difficult for trademark owners to directly prove their losses, it is a common method to calculate the amount of compensation based on the infringer’s gains. However, the "trademark" presupposed by this clause is a trademark in a substantial sense, a trademark that embodies market reputation. Only in this way can it be presumed that the infringer has borrowed the reputation of the trademark owner, and that the infringer's gains are the rights owner's losses. If the registrant's trademark has never been actually used and is just an empty symbol, there is no way to infer that the infringer's gain is the right holder's loss. In our country's judicial practice, there is often no distinction between symbolic value and trademark value, and the infringer's gains are always used as the basis for compensation. Since symbols can receive the same protection as trademarks, it is not surprising that people are keen on enclosing symbols through registration. Obviously, this remedy principle will encourage people to register and hoard trademarks in large quantities, waiting for others to infringe their trademark rights and reap profits. This is obviously very different from the purpose of trademark law to protect trademark rights [6].
(4) Confusion between "trademark use" and "symbol use"
The existing rights relief system has also contributed to the "enclosure of symbols" in the exercise of rights. The reason is that some law enforcement The judicial authorities have not clearly understood what "trademark use" is, and have identified the legitimate use of symbols as infringement, so that symbol monopoly has been supported by the system. The case of Procter & Gamble Company v. Shanghai Chenxuan Intelligent Technology Development Co., Ltd. is a typical case②. The plaintiff registered the trademark ?safeguard? on washing products. The defendant, a company that produces safety products, registered the domain name ?safeguard.com.cn?. The court found that the defendant's registration was the use of the plaintiff's well-known trademark and constituted unfair competition. . It can be seen that the court first determined that the symbol "safeguard" was a trademark. ?safeguard? is a meaningful English word, meaning ?safety prevention?. Apart from the specific product, "safeguard" is just a word. It is an extremely natural and reasonable business choice for companies that produce security products to choose "safeguard" as their domain name, and there is nothing "unfair" about their competition. The judgment stated: The defendant Chenxuan Company did not enjoy any legal rights or interests in 'safeguard' itself before applying to register 'safeguard' as its third-level domain name. On the contrary, the defendant should have known that the plaintiff's registered trademark 'safeguard' was on the market. Enjoy excellent reputation and wide popularity. ?This sentence fully demonstrates the confusion between symbols and trademarks. For the "safeguard" of symbolic meaning, no one enjoys "legitimate rights and interests". What enjoys "excellent reputation and wide popularity" is "safeguard" in the sense of a trademark, but the defendant uses "safeguard" in a symbolic sense. Therefore, the well-knownness of the plaintiff's trademark has nothing to do with the defendant's use of the symbol. The court's judgment actually supported the plaintiff's symbolic enclosure behavior, causing the plaintiff's rights object to change from a trademark to the word "safeguard".
It can be seen that under my country’s existing trademark rights relief system, registered symbols are superior to actually used trademarks, symbol value is equal to trademark value, and trademark rights are equal to symbol monopoly. This is a system that promotes symbol enclosure. soil.
IV. Improvement of the trademark right remedy system: curbing symbol enclosure
(1) Correct interpretation of the effect of registration
The registration of a trademark cannot be regarded as Absolute proof of the validity of rights is only preliminary proof of the validity of rights. The credibility of trademark registration should be judged based on the content of trademark review. Regarding the key matters tested during the review, such as the legality of the trademark symbol composition and the difference and similarity with the previously registered trademark, it can be determined that it has high credibility. For matters that are difficult to test during trademark review, the credibility of the registration cannot be inferred, such as whether the registration infringes upon prior rights other than trademark rights, whether it violates the principle of good faith, etc. If there is sufficient evidence to show that the registration was done in bad faith, the judicial authorities can directly determine that the registration itself constitutes unfair competition, and trademark registration cannot be used as a tool for malicious competitors to circumvent the law. Any behavior that violates honest business practices constitutes unfair competition. Judicial authorities should have systematic thinking habits and treat the entire legislative system as a whole. For malicious registration behaviors that are not explicitly listed in the Trademark Law, the basic principles of the Anti-Unfair Competition Law or the General Principles of the Civil Law can be applied to stop them. Some judicial agencies are too rigid and will only cite Article 31 of the Trademark Law to determine malicious registration. If the registered trademark does not comply with the provisions of this article and has been used and has a certain influence, they will be unable to do anything. The purpose of the so-called "well-known" is to prove the "knowing" of the squatter. Isn't it also "knowing" to know someone else's trademark through specific contact? The rigidity of the judicial authorities is the gospel of malicious speculators.
(2) Pay attention to the benefits generated by actual use
In the relief procedures, emphasis should be placed on protecting the trademark in its substantive sense and paying attention to the benefits generated by actual use. If a registered trademark that has not been actually used conflicts with an actually used trademark, it should first be judged whether the registration was made in good faith to prevent malicious landowners from using the registration system to embezzle the interests of others. If both the registrant and the user have good intentions, they must consider whether the extent of use is sufficient for consumers to identify the source, especially the actual time of use. Just because the symbols are similar, we cannot rashly order people who use them in good faith to stop using them. If both the registrant and the user have good intentions, but objectively it may cause confusion among consumers, consideration may be given to requiring the user to attach appropriate distinguishing marks.
In short, if the party has established market reputation through good faith use, the referee should be particularly careful to safeguard this reputation and interests, and resolve conflicts of interest in the least disruptive way. It cannot simply be based on whether to register or not. Determine protection plans one after another. Even if the signs in dispute are similar in symbolic composition, as long as the distinctiveness is obtained through use, the two should be allowed to exist, and the original sign shall not be invalidated due to trademark differences.
(3) Reasonable estimation of damages
Since my country does not require trademark registration to be actually used, until it is revoked due to continuous non-use after registration, although the trademark is actually a symbol, As long as the registration is made in good faith, you are still protected by the law. If others use the trademark without permission, it constitutes infringement. However, when determining damages, the calculation cannot be based blindly on the infringer's profits. A trademark that has not been actually used has no real market benefits, and the market benefits gained by others from using it cannot be presumed to be losses to the trademark owner. However, those who illegally use other people's trademarks save the cost of independent design or licensing fees, which constitutes unjust enrichment. Therefore, a more reasonable remedy is: The trademark owner has the right to request the infringer to return reasonable trademark licensing fees based on the provisions of unjust enrichment. ?[6] It is worth noting that the "trademark license fee" at this time should be compared with the trademark design fee, and cannot be compared with the trademark license fee that has established a true market reputation, let alone the profits gained by the user as "unjust gain" profit?. In essence, this kind of license fee is a "symbol license fee", which is similar to the value of intellectual achievements, that is, the value of the symbolic form itself, rather than the real trademark value.
(4) Distinguish between "trademark use" and "symbol use". A considerable part of the enclosure of symbols in the exercise of rights is not intentional and is actually due to cognitive impairment. However, for professional rights relief agencies, confusion between "trademark use" and "symbol use" is unforgivable.
If the relief agency can make a correct decision, the decision itself can become an educational tool, allowing trademark owners to gradually understand the scope of their rights. To distinguish between "trademark use" and "symbol use", you must have a deep understanding of the concept of trademark, and remember that a trademark must have market credibility. If the symbol used has nothing to do with the origin of the goods or services in the eyes of consumers, the object used is a pure symbol rather than a trademark.
5. Conclusion
The strange current situation of symbolic enclosure certainly reflects the dishonest side of human nature, but it also has institutional roots that condone the bad nature of human nature. The reshaping of the trademark right remedy system can lead people to realize that the value of a trademark comes from its use, speculative land encirclers must not harm honest users, the relief obtained by a trademark that has not been actually used is limited, and trademark rights are by no means Symbolic monopoly.