An increase in three-dimensional trademark infringement cases caused by counterfeit packaging causing loss of profits

Core tip: Kai A International Hotel Group v. Guangdong XX Group Co., Ltd. and other infringement cases were heard in Dongguan, and XX Jiangmen Jinkai A Hotel, a subsidiary of the group, was also put in the dock. The difference between "Kinchem A" and "Kinchem A" triggered a trademark war and attracted social attention.

"In fact, there are relatively few disputes caused by a single word difference." Liang Yanfen, judge of the Third Civil Division of the Jiangmen Intermediate People's Court, said, "There are many three-dimensional counterfeiting cases of counterfeiting the entire package and appearing in a new look. This is more harmful to consumers and more difficult to detect. ”

1. Three criteria must be met to constitute infringement. There are three criteria to determine whether a trademark is infringing. First of all. It is an objective standard, that is, the trademarks seen on the surface are the same or similar, which is easier to judge. Secondly, there is the subjective standard, which depends on whether the sameness or similarity will cause misunderstanding or confusion among "relevant consumers". Finally, it depends on whether the defendant has intentional infringement, that is to say, whether the defendant has a reasonable reason for using the same or similar trademark. All three standards must be fully met to constitute legal infringement.

2. It is difficult to identify the increase in implicit infringement

“In fact, there are relatively few disputes caused by a single word difference.” Judge Liang of the Third Civil Division of Jiangmen Intermediate People’s Court introduced He said that among the trademark infringement cases in the Jiangmen area, some of the trademarks were exactly the same and were known to be fake and sold as fakes; some of the cases were "edge balls" and it was difficult to determine infringement; in some cases, there were conflicts of rights. However, at present, serial cases still account for a relatively high proportion, rights holders’ awareness of rights protection has increased, rights conflicts are more difficult to adjust, and social attention is also high. Moreover, in terms of development trends, there has been an increase in complex and difficult cases that are difficult to determine whether or not there is infringement. Cases on the connection between administration and justice have become increasingly sensitive. Cases that attract high social attention and have significant impact continue to appear, involving the market structure and the core of the enterprise. Interest cases are slowly increasing. What is most noteworthy is that simple and obvious trademark infringements are beginning to tend to complex and implicit infringements. "There are fewer cases of blatant counterfeiting of well-known trademarks. There are more cases of three-dimensional counterfeiting of whole packages and new appearances. This is more harmful to consumers and harder to detect."

3. Related knowledge: Three-dimensional trademark

A three-dimensional trademark, also called a three-dimensional trademark, refers to a trademark that consists of a three-dimensional trademark that has three dimensions: length, width, and height, and occupies a certain space, or a three-dimensional trademark that contains other signs. A three-dimensional trademark can be the shape of the product itself, the packaging of the product, or other three-dimensional marks. Such as the ribbed Coca-Cola glass bottle, Rolls-Royce's Flying Man, McDonald's Ronald McDonald clown, etc.

4. Rights protection requires judicial and administrative protection

Trademark infringement will not only lead to loss of profits, but also cause a decrease in brand loyalty. Many companies are gradually realizing the importance of trademark rights protection. sex. "In recent years, the awareness of trademark rights protection among Jiangmen enterprises has been strengthened. In particular, some large enterprises have formed internal trademark protection models. However, the risk prevention awareness of small and medium-sized enterprises, especially OEM processing enterprises, is still relatively weak." Liang Yujun told reporters, Since my country is at the bottom of the international processing chain, the issue of OEM infringement is very prominent in the Pearl River Delta and Yangtze River Delta, and there is also great controversy.

For trademark rights holders, the court recommended strengthening internal management, standardizing the use of trademark rights, and preventing employees from changing jobs and dealers from infringing. “We must learn to use rights protection methods and be good at using measures to preserve evidence of infringement.” Liang Yujun believes that the skill of trademark rights protection is to use both administrative law enforcement and judicial protection channels. Because administrative law enforcement is active law enforcement, it is relatively rapid, there is no need to provide guarantees, and the intensity of investigation and punishment is relatively strong, with the power to search and punish. "Enterprises can find relevant management departments or law firms to send letters to intervene in advance to achieve better results." Liang Yanfen emphasized that litigation is an effective way to resolve disputes, but it is not the only way, and it may not be the best way.