What words and graphics are not allowed to be used on trademarks under China’s Trademark Law?

Article 8 of the "Trademark Law of the People's Republic of China" stipulates that trademarks applied for registration in China shall not use the following words and graphics:

1. Same as the People's Republic of China** * Identical or similar to the country’s name, national flag, national emblem, military flag, and medals; 2. Identical or similar to the country’s name, national flag, national emblem, military flag, and medals of a foreign country;

3. Same* ** The flags, emblems and names of international organizations are the same or similar;

4. The signs and names of the "Red Cross" and "Red Crescent" are the same or similar;

< p> 5. The common name and graphics of this product;

6. Directly indicating the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the product;

7 , ethnically discriminatory;

8. Exaggerated propaganda and deceptive;

9. Harmful to socialist morals or having other adverse effects. Place names of administrative divisions at or above the county level in China or foreign place names known to the public may not be used as trademarks, except where the place names have other meanings; registered trademarks using place names will continue to be valid. The "Trademark Law" stipulates which words and graphics may not be used as trademarks

(1) Those that are the same as or similar to the country name, national flag, national emblem, military flag or medal of the People's Republic of China, and those that are the same as those of the Central Government The name of a specific place where a state agency is located or the name or graphics of a landmark building are the same; (2) The name, national flag, national emblem, or military flag of a foreign country is the same or similar, except with the consent of the country’s president; (3) ) Is the same as or similar to the name, flag, or emblem of an international international organization, except with the consent of the organization or is not likely to mislead the public; (4) Is the same as or is similar to the official mark or inspection mark indicating the implementation of control and guarantee except those authorized; (5) Identical or similar to the names and signs of "Red Cross" and "Red Crescent"; (6) Ethnic discriminatory; (7) Exaggerated propaganda and deception Sexual; (8) Harmful to socialist morals or have other adverse effects; (9) Place names of administrative divisions above the county level or foreign place names known to the public shall not be used as trademarks. However, exceptions are those where place names have other meanings or are part of collective trademarks or certification marks; registered trademarks using place names will continue to be valid; (10) only the common name, graphics, and model of the product; (11) only direct expressions The quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods; (12) Lack of distinctive features. If the signs listed in the preceding paragraph acquire distinctive features through use and are easy to identify, they may be registered as trademarks. What words and graphics cannot be used in trademarks?

Article 10 The following signs shall not be used as trademarks:

(1) Those that are identical or similar to the country name, national flag, national emblem, military flag, or medal of the People's Republic of China , and the name is the same as the name of a specific place where the central state agency is located or the name or figure of a landmark building;

(2) It is the same as or similar to the name, national flag, national emblem, or military flag of a foreign country, but Except with the consent of the country's government;

(3) The name, flag, or emblem of an international organization is the same as or similar to that of an international organization, except with the consent of the organization or if it is not likely to mislead the public;< /p>

(4) The same as or similar to the official mark or inspection mark indicating the implementation of control and guarantee, except for authorized ones;

(5) The same as "Red Cross", " The name and logo of "Red Crescent" are the same or similar;

(6) Ethnic discriminatory;

(7) Exaggerated propaganda and deceptive; < /p>

(8) Harmful to socialist morals or have other adverse effects.

Place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks.

However, exceptions are made where place names have other meanings or are part of collective trademarks or certification marks; registered trademarks using place names will continue to be valid.

Article 11 The following signs shall not be registered as trademarks:

(1) Only the common name, graphics and model of the product;

(2) ) only directly expresses the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;

(3) Lack of distinctive features.

If the signs listed in the preceding paragraph acquire distinctive features through use and are easy to identify, they may be registered as trademarks. Our country's laws stipulate what businesses the central bank is not allowed to engage in.

The central bank, the People's Bank of China, is the regulatory agency of the banking industry. It only conducts business between banks and does not engage in business directed at individuals. According to the laws of our country, what are the provisions on the right of prior use of trademarks?

Legal understanding

(1) The concept of the right of prior use of trademarks

New Trademark Law Paragraph 3 of Article 59 clearly stipulates the system of prior use rights of trademarks. According to relevant provisions, the right of prior use of a trademark means that before the trademark registrant applies for a registered trademark, the prior user of an unregistered trademark has used the same or similar trademark as the registered trademark before the trademark registrant on the same or similar goods. A trademark that has certain influence. In this case, the prior user of the unregistered trademark has the right to continue to use the trademark. The owner of the exclusive right to a registered trademark has no right to prohibit the prior user of the unregistered trademark from continuing to use the trademark within the original scope of use. Use the trademark, but you can require the user of the unregistered trademark to attach appropriate distinguishing marks. It can be seen that the "right of prior use of a trademark" is an exception to the principle of trademark registration. Its purpose is to protect trademarks that have an identification effect due to actual prior use, and to balance the rights between later trademark registrants and earlier trademark users. conflicts of interest among the parties and protect the market order of fair competition.

(2) Components of the right of prior use of a trademark

It can be seen from the above concepts that the right of prior use of a trademark is different from the trademark right. It is only a right of defense. It is a right used to fight against a trademark that has been registered later, so as to continue to use the trademark within the original scope of use. To exercise this right, the author believes that the following elements must be met according to the provisions of the new Trademark Law.

1. Before the trademark registrant applies for trademark registration, the unregistered trademark user has already used it.

"Prior use right of trademark", as the name implies, should be used first. According to the general prior use requirements, the time of use shall be based on the first commercial use of the earlier trademark, and this time shall be earlier than the application date of the later registered trademark; if it is later than the application date of the later registered trademark, , there is no basis for the prior use right to exist.

2. Prior use by the user of an unregistered trademark shall precede that of the trademark registrant.

According to the provisions of the new law, the prior user of an unregistered trademark should not only use it earlier than the filing date of the later registered trademark, but also earlier than the first commercial use time of the trademark registrant. That is to say, if the application date for a later registered trademark is January 1, 2015, and the earliest time of use by the trademark registrant is January 1, 2014, then if the user of the unregistered trademark wants to exercise the right of prior use of the trademark To fight against a later trademark right, you need to prove that it was in prior use before January 1, 2014, not January 1, 2015.

3. The trademark used earlier is identical or similar to the trademark registered later, and the goods or services used are the same or similar.

There is no doubt that the basic conditions for exercising the right of prior use of a trademark should be that the trademark is identical or similar, and the goods or services are identical or similar. Because, if the previously used trademark is not identical or similar to the later registered trademark, or the goods or services used are not identical or similar, then the user of the unregistered trademark and the later trademark registrant have no conflict of rights, and both parties should Can live in peace.

4. The previously used trademark must have certain influence.

The so-called prior use and certain influence means that the prior user has already used a certain trademark in China and it has been known to the relevant public within a certain geographical scope.

If the prior user can only prove that the trademark was actually used before the filing date of the registered trademark by others and before the earliest use of the trademark by the trademark registrant, but cannot prove that the trademark has had a certain influence, the prior user will not be entitled to The trademark owner has the prior right to use the trademark and cannot continue to use the trademark. The reason why it is required to have a certain impact is that the basis for the prior use of a trademark is that prior use has a certain impact and produces the identification function of the trademark. If this prior use is not protected, it will be obviously unfair to the prior user. It exists as a supplement to the trademark registration system. If only prior use without certain influence is required to enjoy the right of prior use of a trademark, the interests of later trademark registrants will not be protected, thus shaking my country's established trademark registration system.

5. The prior use must be in good faith.

In order to clarify whether good faith is a necessary component, we can first look at the relevant regulations of other countries and regions. Japan and Taiwan, which belong to the civil law system, have clarified "good faith" as a condition for the prior use right of a trademark in the form of statutory law, while the United Kingdom and the United States, which belong to the common law system, have not made any literal provisions on the subjective status of the prior user. Regulation. U.S. trademark law pays more attention to the requirement that the consequences of use "will not cause confusion, misunderstanding, or deception." From these provisions, we can see that certain requirements should be put forward for the subjective aspects of the prior user. Although there is no written statement in the provisions of the new law that prior use must be in good faith, the author believes that the right to use a trademark prior to use is based on the prior use in good faith, and good faith should belong to the prior use right of a trademark. One of the inherent requirements is that it is hoped that the relevant requirements for "good faith" can be reflected in the "Implementing Regulations" and relevant judicial interpretations accompanying the new law.

(3) Exercise of the prior right to use a trademark

According to the provisions of the new Trademark Law, if the above-mentioned constituent elements are met, the owner of the exclusive right to a registered trademark has no right to prohibit the user from using the trademark. The trademark can continue to be used within the original scope of use, but it can be required to be attached with appropriate distinguishing marks. Specifically, when exercising the right of prior use of a trademark, the following requirements should be noted.

1. Continue to use within the original scope of use.

How to understand the "original scope of use", the author believes that it involves three aspects. The first aspect is geographical scope. Since the later registered trademark has been registered, in order to balance the interests of both parties, the user of the earlier trademark should only continue to use the trademark within the original area of ??use, and should not expand the area of ??use at will. Regarding the understanding of the area of ??use, we should adhere to the standard of "certain impact". Only in areas where the prior use has "certain impact" can the prior trademark user enjoy the right to use the trademark. Of course, due to the current booming development of e-commerce, how to determine the geographical scope of sales models such as Taobao and Alibaba, which are mainly online sales, still needs to be further clarified in judicial practice. The second aspect is the scope of the trademark. The user of an earlier trademark shall only have the right to use the previously used trademark and shall be prohibited from changing the trademark without authorization. If the prior trademark user changes its previously used unregistered trademark in order to better distinguish it from a later registered trademark, such a situation should be allowed. The third aspect is the scope of the goods or services. The scope of use of the trademark by the prior trademark user shall be limited to the goods or services previously used, and shall not be extended to other similar goods or services without authorization.

2. The later trademark registrant may require the earlier trademark user to add appropriate distinguishing marks.

If the later trademark registrant believes that the trademark used by the earlier user is likely to cause confusion and misunderstanding among the relevant public about the source of the goods or services, it may require the earlier trademark user to use the unregistered trademark When applying for a trademark, add appropriate distinguishing marks. From a legal perspective, this is a right of claim that gives the subsequent trademark registrant a right to balance the prior use rights of the trademark. The prior trademark user should attach an appropriate logo after the trademark registrant's request to facilitate the relevant public to identify and identify the two trademarks. differences among those. If the prior trademark user cannot add appropriate distinguishing marks, he or she will not have the right to use the trademark prior to use and may not continue to use his or her trademark.

So, if the trademark registrant fails to exercise this right of request, should the prior user bear the corresponding obligation to prevent confusion? The author believes that the principle of fairness is one of the basic principles of my country's civil law. The existence of the prior right to use a trademark should also be premised on the premise that it does not constitute an infringement of the later registered trademark rights. The exercise of the right to use must be restricted. Only in this way. Only then can the legitimate interests between the prior user and the trademark registrant be balanced. Therefore, in order to protect the interests of subsequent trademark registrants and ordinary consumers, even if the trademark registrant does not exercise this right of request, the earlier trademark user should be given the obligation to proactively prevent confusion.

Conclusion

The trademark prior use right system has been widely used in many countries and regions and has achieved good legal effects. As a basic trademark system, the establishment of the trademark prior use right system in my country fully reflects the principle of legal fairness, fully considering and balancing the prior users of unregistered trademarks, later registered trademark rights holders, and the general public. The legitimate interests of the three parties of ordinary consumers. At the same time, we can also see that by establishing the trademark prior use right system, a very important relationship in the trademark field, that is, the relationship between use and registration, has been clearly adjusted. The protection of unregistered trademarks has practical guiding significance for the majority of trademark users to pay more attention to actual use in the future.

What aspects of the fair use of copyrights are stipulated in our country's laws

According to relevant legal provisions, the specific circumstances of the fair use system of copyrights:

Relevant legal provisions "China Copyright Law of the People's Republic of China

Article 22 Under the following circumstances, a work may be used without the permission of the copyright owner and without payment of remuneration to the copyright owner, but the name of the author and the title of the work must be specified, And shall not infringe other rights enjoyed by the copyright holder in accordance with this law:

(1) For personal study, research or appreciation, using other people’s published works;

(2) For introduction , comment on a certain work or explain a certain issue, and appropriately quote other people's published works in the work;

(3) In order to report current affairs news, it is not allowed in newspapers, periodicals, radio stations, television stations and other media Avoid reproduction or quotation of published works;

(4) Newspapers, periodicals, radio stations, television stations and other media publish or broadcast political, political, and political affairs that have been published by other newspapers, periodicals, radio stations, television stations, etc. Current affairs articles on economic and religious issues, except those where the author declares that they are not allowed to be published or broadcast;

(5) Articles published or broadcast on public websites by newspapers, periodicals, radio stations, television stations and other media Speeches, except those where the author declares that they are not allowed to be published or broadcast;

(6) For school classroom teaching or scientific research, translate or copy a small amount of published works for use by teaching or scientific researchers, but shall not be published or distributed ;

(7) State agencies use published works within a reasonable scope for the purpose of performing official duties;

(8) Libraries, archives, memorial halls, museums, art galleries, etc. Copying works collected by the museum for display or preservation purposes;

(9) Performing published works for free, without charging the public or paying the performers;

(10) Copying, painting, photographing, and videotaping works of art installed or displayed in outdoor public places;

(11) Copying, painting, photographing, or videotaping works of art that have been installed or displayed in outdoor public places; Published works written in Chinese language are translated into minority languages ????and published and distributed domestically;

(12) Convert already published works into Braille for publication.

The provisions of the preceding paragraph shall apply to restrictions on the rights of publishers, performers, producers of audio and video recordings, radio stations, and television stations. What does state compensation include under our laws?

State compensation refers to the compensation that state agencies and their staff cause damage to the personal or property rights of citizens, legal persons and other organizations due to the exercise of their powers and should be paid in accordance with the law. State compensation shall be fulfilled by the infringing state agency.

According to the provisions of the "State Compensation Law of the People's Republic of China" that came into effect on January 1, 1995, state compensation generally includes administrative compensation and criminal compensation.

The Supreme People’s Court announced the standard of compensation for infringement of citizens’ rights to personal freedom in the 2015 state compensation decision. The specific amount is 219.72 yuan per day. Which words and graphics may not be used as trademarks

Article 10 of the Trademark Law The following signs shall not be used as trademarks:

(1) The country name, national flag, The national emblem, national anthem, military flag, military emblem, military anthem, medals, etc. are the same or similar, and are the same as the name or logo of a central state agency, the name of a specific location where it is located, or the name or graphics of a landmark building;

< p> (2) Identical or similar to the country name, national flag, national emblem, military flag, etc. of a foreign country, except with the consent of the country’s government;

(3) International organizations with other countries The name, flag, emblem, etc. of the organization is the same or similar, except with the consent of the organization or if it is not likely to mislead the public;

(4) It is the same as or similar to the official mark or inspection mark indicating the implementation of control and guarantee except those authorized;

(5) Names or signs that are the same as or similar to "Red Cross" or "Red Crescent";

(6) With Ethnic discriminatory;

(7) Deceptive and likely to cause the public to misunderstand the quality and other characteristics of the goods or their place of origin;

(8) Harmful to socialism Morality or other adverse effects.

Place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks. However, exceptions are made where place names have other meanings or are part of collective trademarks or certification marks; registered trademarks using place names will continue to be valid.