Abstract: my country joined the Paris Convention for the Protection of Industrial Property in 1984 and became its 95th member state. Like other member states that have joined the Paris Convention, special legal protection for well-known trademarks in accordance with the provisions of the Convention has become an important part of my country's trademark legal work. How to identify well-known trademarks and determine trademark infringement is a key link in the investigation and handling of trademark infringement cases by China's industrial and commercial administration authorities, and it is also a difficult issue. Below, please take a look at several key points that need to be grasped to determine trademark infringement. I hope it will be helpful to everyone. How to identify trademark infringement
Determining trademark infringement is a key link in the investigation and handling of trademark infringement cases by China's industrial and commercial administration authorities, and it is also a difficult issue. In the determination, it needs to be determined in accordance with the law and ex officio. The so-called determination according to law refers to the determination in accordance with the provisions of the Trademark Law and its Implementing Rules, as well as other laws, regulations and rules, combined with the actual situation; the so-called determination ex officio refers to the determination by the industrial and commercial administration authorities at or above the county level authorized by law. Within the scope of authority, it shall be determined based on the actual situation. If the legal provisions are not clear and it is difficult to make a determination within the scope of authority, you can request instructions step by step in accordance with the relevant provisions, attach materials related to the case, and report it to the superior authority for determination. To determine trademark infringement, you need to grasp the following points:
1. Follow the principles of protecting registered trademarks
The exclusive right to trademark is generated through registration, during which legal procedures and strict Therefore, after the exclusive right to use a trademark is established, it should be protected within the scope of the law. Even a trademark that is considered improperly registered should be protected before being revoked. In accordance with the provisions of Paragraph 5 of Article 25 of the "Detailed Rules for the Implementation of Trademark Law", the decision or ruling to cancel a registered trademark shall not be retroactive to the decision to handle trademark infringement cases made and executed by the industrial and commercial administrative authorities before the cancellation. and force.
After the validity period of a registered trademark expires, within the 6-month extension period stipulated by law, if the original registered trademark owner has not submitted an application for renewal, or the renewal application has been rejected, others may use it during this period. Trademarks that are identical or similar to the trademark do not constitute trademark infringement; if the owner of the original registered trademark applies for renewal and is approved, and others use the trademark that is identical or similar to the trademark during this period, it constitutes trademark infringement.
2. Reasonable determination of similar trademarks
A similar trademark refers to a trademark that is similar to a registered trademark in terms of the glyph, pronunciation, meaning of the text or the composition and color of the graphics or the overall structure of the text and graphics. In comparison, trademarks can easily cause consumers to misunderstand the source of goods. Determining similar trademarks requires detailed analysis of specific circumstances. Comparisons are mainly made from the sound, shape, and meaning of the trademark, combined with factors such as composition, color, and overall structure, and a combination of isolated observation, overall observation, and key part observation is adopted. Make a comprehensive judgment. In the determination, the basic conditions should be considered as being likely to cause consumers to misunderstand the source of the goods, but the necessary conditions should not be considered as causing actual misunderstandings.
To determine whether trademarks are similar, the approved registered trademark words, graphics or combinations thereof shall prevail, rather than the trademark actually used by the owner of the registered trademark, because sometimes the trademark actually used by the owner of the registered trademark shall prevail. It is not completely consistent with the approved registered trademark. It is worth pointing out that the standards for registration and management are consistent in determining trademark similarity, but there are sometimes slight differences in handling individual cases. The reason is that registration is a static determination and management is a dynamic determination. For example: "00l" is a registered trademark used by one company on TV reception lines. Another company uses the "CCT" trademark on the same product and applies for registration to the Trademark Office. From a registration perspective, "CCT" is not similar to "001", but from a management perspective, the actual font, arrangement, and overall appearance of "CCT" are similar to "001".
3. Correctly judge similar goods
Similar goods refer to the use of a trademark that is the same as or similar to a registered trademark, and the goods approved for use with the registered trademark have different functions, uses, and Products with similar raw materials, production companies, consumer targets, sales channels, etc., which may easily cause consumers to misunderstand the source of the product.
To determine similar goods, the premise is the relationship between the goods and the relationship between the goods and the trademark. Goods that have the same functions and uses, and have the same consumer targets and sales channels are generally regarded as similar goods. However, the raw materials and production companies of the goods can clearly indicate the source of the goods and will not cause confusion among consumers. If misidentified, they should not be deemed to be similar goods. If there is a specific connection between the goods and services, and the use of the same or similar trademarks will easily make consumers think that the goods or services are provided by the same enterprise, the goods and services should be deemed to be similar.
In order to facilitate registration and management; my country has adopted the International Classification of Goods and Services for trademark registration, dividing goods and services into 42 categories, and each category is divided into several groups; at the same time, the Trademark Office There are also internal control standards for distinguishing similar products. Although the above two standards are not the basis for classifying similar goods, they can be used as a reference for identifying similar goods. Judging from the actual situation, there are tens of millions of goods and services. With the development of science and technology and changes in economic needs, some goods and services are not reflected in the classification table and distinction table. Moreover, things that were similar in the past may not be similar now, and things that were not similar in the past may be similar now. It does not mean that things of the same type and the same group are similar, nor does it mean that things of different types and different groups are not similar. This requires specific analysis of specific situations in management and consistency with the standards mastered by registration. To determine similar goods, the goods for which the registered trademark is approved should be used as the standard, rather than the goods actually used by the owner of the registered trademark.
4. Do not make a choice based on the quality of the goods
Trademarks are a sign that distinguishes the source of goods. They have the function of indicating the quality of goods, but it is not the main function; the provisions of the "Trademark Law" , there is content to supervise the quality of goods, but the main content is to protect the exclusive rights of registered trademarks. Therefore, in specific infringement cases, the quality of the goods does not affect the determination of trademark infringement. If others use a trademark that is identical or similar to a registered trademark without authorization, even if the quality of their goods is better than that of the owner of the registered trademark, it shall be deemed a trademark infringement. As for the owner of a registered trademark whose goods are of low quality, shoddily manufactured or passed off as good, which constitutes deceiving consumers, other provisions of the Product Quality Law and the Trademark Law can be applied, and it has no direct connection with the determination of trademark infringement. .
5. Do not give up on the illegal use of the registered trademark owner
The exclusive right to use a trademark is a civil right, and the registrant has the right to exercise its rights within the scope of the law. If the registrant violates the Trademark Law and the Implementing Rules of the Trademark Law during the use of a registered trademark, relevant provisions may be applied and the registrant shall be required to bear corresponding administrative and legal responsibilities, but this will not affect the determination of trademark infringement. . In this case, if others use a trademark that is identical or similar to the registered trademark without authorization, it shall be deemed as trademark infringement.
The illegal use of registered trademark owners mainly includes: changing the text, graphics or combination of registered trademarks on their own; stopping use for three consecutive years; not indicating registered words or marks when using registered trademarks. Since the exclusive right to use a trademark is a civil right, if the owner of a registered trademark engages in the above-mentioned illegal use during the exercise of rights, that is, there is a subjective fault and the resulting infringement causes others to infringe, the infringer is not liable for infringement.
6. Reasonable definition of normal usage
Others’ unauthorized use of words and graphics that are the same as or similar to a registered trademark does not necessarily constitute trademark infringement: if such use is normal Use in any manner does not constitute trademark infringement. For example, the trademark "Sanzhu" is a registered trademark used by one company on medicines, and another company uses the words "Sanzhu Chinese Herbal Medicine" on the packaging of oral liquid products to indicate the ingredients of the oral liquid product (which has been verified to be true). That is to say, it is not a trademark or a product name, but a normal description of the product. Even if it contains the words "Sanzhu", it does not constitute an infringement of the exclusive right of the "Sanzhu" registered trademark.
For another example, a shoe factory registered the "35:44" trademark on footwear products, and two other shoe factories used the words "35:44" and "35-44" respectively on the bottoms of their rubber shoes. 35:44" and "35-44" are not the normal way to mark the size, model or specification of rubber shoes, so they are not fair use and constitute an infringement of the exclusive rights of the registered trademark "3544".
7. Comprehensive measurement of other factors
In the process of identifying trademark infringement cases, in addition to the factors that need to be grasped above, other factors may be involved, such as the popularity and distinctiveness of the trademark. and the specific usage method, the relationship between the parts and components of the goods as a whole, the degree of subjective fault of the owner of the disputed trademark, etc. Because other factors involved in individual cases are inconsistent, the determination of trademark infringement will also be inconsistent. For example, the issue of trademark visibility. Generally speaking, the higher the popularity of a trademark, the wider the scope of protection, and the greater the possibility of being found to be infringing upon trademark infringement when others use it without authorization. "Polaris" is a registered trademark used by watch and other product manufacturers. It consists of three parts: "Polaris" in Chinese, "POLARIS" in English and a star graphic. It has a high reputation. Others have used the "Beidou Star" and "Shixing" trademarks on their watch products, and the clock dial decoration is the same as or similar to the "Polaris" watch dial decoration. From the perspective of trademarks, there are certain differences between the words and graphics of "Big Dipper" and "Shixing" and the words and graphics of "Polaris". Generally speaking, they do not need to be recognized as similar. However, considering that the "Polaris" trademark is a well-known trademark, it is recognized that it is similar. The overall structures of "Big Dipper" and "Time Star" are similar to "Polaris" and should be treated as trademark infringement. For another example, regarding the relationship between the parts and components of the commodity as a whole, if the component is a major part of the commodity as a whole, and the way in which the components are used in the commodity as a whole would cause consumers to misunderstand the origin of the commodity as a whole, the commodity as a whole is Can be considered as trademark infringement