What are the conditions for well-known trademarks?
The trademark law does not stipulate the formal requirements of well-known trademarks, which leaves a lot of discretion for the judicial and administrative departments and also creates a difficult problem. So whether well-known trademarks must have formal requirements _ Considering the following three realistic factors, well-known trademarks must have formal requirements at the same time:
First of all, the necessary elements or elements of well-known trademarks stipulated in the trademark law are too abstract and general to be operated and grasped in practice;
Secondly, determining the formal requirements can prevent the abuse of the discretion of law enforcement departments and maintain a good law enforcement order;
Thirdly, determining the formal requirements can ensure the relative stability of well-known trademarks, so that the protection of well-known trademarks can be based on laws and evidence.
Regarding the relationship between substantive elements and formal elements, substantive elements are the factual conditions for the formation of well-known trademarks, while formal elements are the legal conditions for the formation of well-known trademarks, which cannot be biased. If we overemphasize the substantive elements and ignore or even ignore the formal elements, it will easily lead to the confusion of legal order; On the other hand, if the formal requirements are overemphasized and the substantive requirements are not respected, it will deviate from the purpose of well-known trademark protection and move towards proceduralism or nihilism.
What are the ways to apply for well-known trademarks? What is the application method of well-known trademarks in China?
China is internationally accepted? Passive identification? 、? Case identification? In order to recognize this principle, two ways have been established: administrative recognition and judicial recognition. There are only two accreditation bodies: 1, State Administration for Industry and Commerce (including State Trademark Office and Trademark Review and Adjudication Board), and 2, courts. The specific application channels are as follows:
(a) in the application for trademark objection
Trademark objection refers to a trademark that has passed the preliminary examination of the Trademark Office. Before obtaining the registered trademark certificate, the Trademark Office will make an announcement first, and anyone can raise reasonable objections during the announcement period. If in the process of raising an objection, the trademark may constitute an infringement of its own trademark, and at the same time apply to identify itself as a well-known trademark. This method is relatively direct and has few intermediate links. You can apply directly to the Trademark Office, with faster approval speed and lower application fee. But the prerequisite must be to have and apply it? A well-known trademark? Trademarks with identical or similar trademarks are within the announcement period.
Applicant: State Trademark Office.
Prerequisites: Must have and apply for? A well-known trademark? Trademarks that are the same as or similar to the trademarks during the announcement period generally require that the announced trademarks be different from the well-known trademarks to be applied for.
(2) Application for trademark disputes
Trademark disputes refer to registered trademarks. Because of some legal reasons, others think that their trademarks have been infringed, and propose to the Trademark Office to cancel the registered trademarks. In the process of revocation, you can also apply to identify your own trademark as a well-known trademark. The difference between this method and the former method is to apply to the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce. The prerequisite is that there is a registered trademark that is the same as or similar to the trademark applied for recognition as a well-known trademark, which has been registered in other categories and is within the five-year dispute period.
Applicant: Trademark Review and Adjudication Board of the State Administration for Industry and Commerce.
Prerequisite: there must be a registered trademark that is the same as or similar to the trademark applied for recognition as a well-known trademark, and this is rarely the case during the five-year dispute period.
(3) Application in trademark management
If a trademark is counterfeit, it reflects that the trademark sells well. ? Based on this, the local industrial and commercial bureau found that there were many acts of infringement of the trademark right in the process of counterfeiting, and it can identify the trademark as a well-known trademark according to the application of the parties.
Applicant: provincial and municipal local industrial and commercial bureaus and the State Trademark Office.
This method is the most troublesome. Generally, it is necessary to apply to the regional industrial and commercial bureau first, then to the provincial industrial and commercial bureau, and then to the State Trademark Office. Finally, whether it is a well-known trademark is determined by the State Trademark Office. If the county-level industrial and commercial bureau investigates and deals with counterfeiting, there are many organs involved, and the industrial and commercial bureaus at all levels must pass them one by one, and the intermediate link takes a long time, at least more than one year.
(4) Determination in litigation cases.
The court's judgment that well-known trademarks are simple, low-cost and easy to operate has increasingly become the most commonly used way for courts to identify well-known trademarks.
Applicant: Court.
In these two cases, the court can generally hold that: 1, the name of a well-known trademark is registered as a domain name by others, and 2, the well-known trademark is infringed by others. This usage generally requires the use of different types of trademarks. If it is a similar commodity, it is easy to be identified as trademark infringement, but it cannot be applied for as a well-known trademark according to this case.
The procedure of identifying well-known trademarks
Where an enterprise needs to apply for the recognition of a well-known trademark, it must submit relevant materials through the local provincial, autonomous region and municipality administration for industry and commerce (hereinafter referred to as the provincial administration for industry and commerce). The relevant materials for enterprises to apply for the recognition of well-known trademarks shall be preliminarily examined by the provincial industrial and commercial bureau, and opinions shall be signed. The provincial industrial and commercial bureaus shall submit the relevant application materials that have passed the preliminary examination and signed opinions to the State Administration for Industry and Commerce in a timely manner by mail.
When an enterprise applies for the recognition of a well-known trademark, it shall submit an application report for the recognition of a well-known trademark, which shall provide evidence that its trademark rights and interests have been damaged. At the same time, the Application Form for the Recognition of Well-known Trademarks shall be truthfully filled in, and the corresponding certification materials shall be provided. These supporting materials mainly include:
1. A copy of the business license of the applicant for well-known trademark recognition;
2. Where the applicant for well-known trademark identification entrusts a trademark agency, it shall provide a power of attorney signed by the applicant or an entrustment agreement (contract) signed by the applicant and the trademark agency;
3. The main economic indicators of the main goods or services that have used the trademark in recent three years (copies of the annual financial statements or other statements stamped with the applicant's special financial seal and the special seal of the local finance and taxation department shall be provided, and industry certification materials issued by the national industry association or the national industry administrative department shall be provided);
4. The sales or operation of the main goods or services using the trademark at home and abroad and the regions (copies of relevant main sales invoices or sales contracts shall be provided);
5. The registration of the trademark at home and abroad (the registration of the trademark in all categories of goods or services and the country or region where it is located shall be listed, and a copy of the corresponding trademark registration certificate shall be provided);
6. Advertising release of the trademark in recent years (provide copies of relevant major advertising contracts and advertising pictures);
7. The earliest use and continuous use time of the trademark (the earliest sales invoice or contract of the goods or services using the trademark or a copy of the earliest advertisement or trademark registration certificate of the trademark shall be provided);
8. Other documents related to well-known trademarks (such as copies of provincial famous trademarks). ).
An enterprise applying for the recognition of a well-known trademark may prepare its own application materials or entrust a trademark agency approved by the State Administration for Industry and Commerce to act as its agent. The application materials for the identification of well-known trademarks submitted by institutions or individuals that do not have the qualification of trademark agency shall not be accepted by the provincial industrial and commercial bureau. When an enterprise entrusts a trademark agency to handle matters related to the application for the recognition of a well-known trademark, it shall not charge any other fees from the client except the appropriate agency fee.
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