?The "Trademark Law" and the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases concerning Authorization and Confirmation of Trademark Rights" (hereinafter referred to as the "Regulations") all provide for prior rights. This prior rights system The purpose of the design is to maintain fair market transactions and protect other rights from improper exploitation. Judging from the content described in the above two legal articles, prior rights include not only relevant civil rights, but also other civil rights and interests that should be protected.
However, how to distinguish trademark rights from other legitimate rights and interests, and how to balance the conflict of interests between trademark rights and other legitimate rights and interests, has always troubled the author. Therefore, the author briefly sorted out this issue based on relevant laws. Use it to check yourself.
1. Relevant Laws
Article 9 of the "Trademark Law": The trademark applied for registration shall have distinctive features and be easy to identify, and shall not be inconsistent with the legal rights previously obtained by others. conflict.
Article 32 of the Trademark Law: Applications for trademark registration shall not damage the existing prior rights of others, nor shall unfair means be used to preemptively register a trademark that has been used by others and has a certain influence.
Article 18 of the "Regulations"? The prior rights stipulated in Article 32 of the Trademark Law include the civil rights enjoyed by the parties before the application date of the trademark in dispute or other legitimate rights and interests that should be protected. If the prior rights no longer exist when the disputed trademark is approved for registration, it will not affect the registration of the disputed trademark.
Article 19 of the "Regulations": If a party claims that the trademark in dispute infringes its prior copyright, the people's court shall, in accordance with the Copyright Law and other relevant provisions, determine whether the claimed object constitutes a work and whether the party is a copyright owner. The person or other interested party who has the right to claim copyright and whether the disputed trademark constitutes an infringement of copyright shall be examined.
If a trademark mark constitutes a work protected by copyright law, the design drafts, originals, contracts for obtaining rights, copyright registration certificates before the application date of the trademark in dispute, etc. provided by the parties involved in the trademark mark can be used as Preliminary evidence proving copyright ownership.
Trademark announcements, trademark registration certificates, etc. can be used as preliminary evidence to determine that the trademark applicant is an interested party who has the right to claim copyright in the trademark mark.
Article 20 of the "Regulations": If a party claims that the disputed trademark infringes upon its right to name, if the relevant public believes that the trademark sign refers to the natural person, it is easy to believe that the goods marked with the trademark have passed through the natural person. If the trademark is licensed or has a specific connection with the natural person, the people's court shall determine that the trademark infringes the name right of the natural person.
? The party claims the right to name by using a specific name such as a pen name, stage name, translated name, etc. The specific name has a certain degree of popularity and has established a stable corresponding relationship with the natural person, and the relevant public uses it to refer to the natural person. , the People's Court supported it.
Article 21 of the "Regulations": The trade name claimed by the party has a certain market reputation, and others apply to register a trademark that is the same or similar to the trade name without permission, which may easily lead to confusion among the relevant public about the source of the goods. , if the party’s claim constitutes prior rights and interests, the people’s court will support it.
? If the party makes a claim based on the abbreviation of the name of an enterprise that has a certain market reputation and has established a stable corresponding relationship with the enterprise, the provisions of the preceding paragraph shall apply.
Article 22 of the "Provisions" If the party claims that the trademark in dispute damages the copyright of the character's image, the People's Court shall conduct a review in accordance with Article 19 of these Provisions.
? For works within the copyright protection period, if the name of the work, the names of the characters in the work, etc. are relatively well-known, using them as trademarks on related goods may easily cause the relevant public to mistakenly believe that they have been passed by the right holder. If the parties have permission or have a specific connection with the right holder, and the parties claim that this constitutes prior rights and interests, the people's court will support it.
Article 23 of the "Regulations": If the prior user claims that the trademark applicant used unfair means to preemptively register a trademark that was previously used and has a certain influence, if the previously used trademark has already had a certain influence, If the trademark applicant knew or should have known about the trademark, it can be presumed that it constitutes "preemptive registration by unfair means."
However, this is excepted if the trademark applicant provides evidence to prove that it has no bad faith in taking advantage of the goodwill of the previously used trademark.
? If the prior user provides evidence to prove that its prior trademark has a certain period of continuous use, area, sales volume or advertising, the people's court may determine that it has a certain influence.
? If the prior user claims that the trademark applicant applies for registration of a trademark that has been previously used and has certain influence on goods that are not similar to it, which violates Article 32 of the Trademark Law, the People's Court shall Not supported.
Article 24 of the "Regulations": Anyone who disrupts the order of trademark registration, harms the interests of the public, improperly appropriates public resources or seeks illegitimate benefits by other means other than deception shall be punished. The People's Court may determine that it falls within the "other unfair means" stipulated in Article 44, Paragraph 1, of the Trademark Law.
2. Application of legal provisions
? The so-called prior rights in the Trademark Law include civil rights and legal civil rights and interests. Of course, the time when the rights or interests are acquired should meet Before the trademark application date, this means "prior". Prior rights are a legal concept, but the law does not stipulate them in a unique way. As far as the author understands, they include: copyright, portrait rights, name rights, trade name rights, and unregistered trademarks that have been used and have a certain influence. rights, domain name rights, goodwill rights, well-known product names, etc. Because the above-mentioned rights or interests have certain prior interests or potential economic benefits, the risk of being registered as a trademark by others is significantly increased. The protection of the above-mentioned rights not only protects one's own rights and interests, but also provides protection to others who have not grabbed the trademark. Warnings are given to successful applicants, which is of far-reaching significance for maintaining the normal order of trademark application and registration. It is also a reflection of the principle of honesty and trustworthiness based on economic activities.
(1) Basic conditions for the application of prior copyright: 1. The prior copyright should have the characteristics of "originality"; 2. The ownership of the relevant copyright is clear and the time of completion of creation is determined. In the "Regulations", copyright A person can provide evidence such as the design draft, original copy of the relevant work, the contract for obtaining the rights, and the copyright registration certificate before the application date of the disputed trademark. The "Regulations" have expanded the scope of evidence, and the trademark announcement page and registration certificate can be used. Become evidence proving the existence and attribution of copyright; 3. Whether the trademark logo is the same as or similar to the relevant work; 4. Whether it is likely to cause confusion or misunderstanding.
? In the protection of prior rights, prior copyright is a right that does not require “famousness” to enjoy cross-category protection. Compared with portrait rights, copyright does not require “beauty”, The requirements for “features” are lower, and the risk of being preemptively registered as a trademark is greater. Therefore, art works should be protected as early as possible.
? (2) Basic conditions for the application of name rights: The scope of names in the "Regulations" includes not only real names, but also pen names, stage names, and translated names. The expansion of the scope of protection of name rights is in line with daily practical life. When protecting prior name rights, the following aspects should be considered: 1. The name has been well-known for a long time; 2. There is a stable correspondence between the name and the natural person; 3. Whether the trademark logo is the same as or similar to the name ; 4. Whether there is the possibility of confusion or misunderstanding.
? (3) Situations that qualify as preemptive registration and prior use of a trademark with certain influence: First, the content of "unfair means" should be clarified, combined with Articles 23 and 20 of the "Regulations" Article 4: Unfair means include fraud, threats of violence, killing, injury, etc. There are no legally protected measures between the means and the purpose. Secondly, a “trademark with certain influence” should be likely to be the same as or similar to the goods and services used by the trademark in dispute. For those who claim Article 32 on goods or services that are not identical or similar, the court will It will not be supported because only well-known trademarks can be protected across categories, and the scope of protection for logos that are not well-known trademarks is strictly limited.
3. Postscript
? The above content basically summarizes the scope and application of prior rights. For content not covered in this article, there are prior articles or the author believes that There are certain similarities in application, so they will not be discussed here.