Identifying trademark infringement is a key link and a difficult problem for China Administration for Industry and Commerce to investigate and deal with trademark infringement cases. In the identification, it needs to be identified according to law and ex officio. The so-called identification according to law refers to identification in accordance with the Trademark Law and its Implementation Rules, as well as other laws, regulations and rules, combined with actual conditions; The so-called ex officio identification refers to the identification by the administrative department for industry and commerce at or above the county level within the scope of functions and powers entrusted by law, combined with the actual situation. If the legal provisions are unclear and it is difficult to identify them within the scope of their functions and powers, they can ask for instructions step by step according to the relevant provisions, and attach materials related to the case and report them to the higher authorities for identification. To identify trademark infringement, we need to grasp the following points:
1. Follow the principle of protecting registered trademarks
The exclusive right to use a trademark is produced through registration, which has gone through legal procedures and strict examination. Therefore, after the establishment of the exclusive right to use a trademark, it should be protected within the scope of law, even if it is considered that the trademark is improperly registered, before it is revoked. In accordance with the provisions of the fifth paragraph of Article 25 of the Detailed Rules for the Application of Trademark Magic Weapons, the decision or ruling to revoke a registered trademark has no retrospective effect on the decision made and executed by the administrative department for industry and commerce before the revocation.
after the expiration of the registered trademark, within the six-month grace period stipulated by law, if the owner of the original registered trademark still fails to apply for renewal, or after the application for renewal is rejected, others use the same or similar trademark during this period, which does not constitute trademark infringement; If the owner of the original registered trademark applies for renewal and is approved, others use the same or similar trademarks during this period: it constitutes trademark infringement.
ii. Reasonable determination of approximate trademarks
An approximate trademark refers to a trademark that, compared with a registered trademark, tends to mislead consumers about the source of goods in terms of the font, pronunciation, meaning, composition and color of words or the overall structure of words and graphics. To judge an approximate trademark, we need to analyze the specific situation, mainly from the three aspects of the sound, shape and meaning of the trademark, combined with factors such as composition, color and overall structure, and make a comprehensive judgment by combining isolated observation, overall observation and important observation. In the judgment, it should be based on the possibility that consumers may mistake the source of goods for the basic conditions, but not on the fact that it is necessary.
judging the similarity of trademarks should be based on the words, graphics or their combinations of the registered trademarks, rather than the trademarks actually used by the registered trademark owners, because sometimes the trademarks actually used by the registered trademark owners are not exactly the same as those approved for registration. It is worth pointing out that the standards of registration and management are the same in the judgment of trademark approximation, but sometimes they are slightly different in case handling, because registration is a static judgment and management is a dynamic judgment. For example, "l" is a registered trademark used by one enterprise on the TV receiving line, and another enterprise used the "CCT" trademark on the same commodity, and submitted an application for registration to the Trademark Office. From the registration point of view, "CCT" is not similar to "1", but from the management point of view, the font and arrangement of "CCT" actually used are similar to "1" in overall appearance.
III. Correctly judging similar commodities
Similar commodities refer to commodities that are similar to those approved for use with registered trademarks in terms of functions, uses, raw materials, manufacturers, consumers and sales channels, which may easily lead consumers to misunderstand the source of commodities. To judge similar commodities, the premise is the relationship between commodities, and consider the relationship between commodities and trademarks. Commodities with the same functions and uses, and with the same consumers and sales channels, are generally recognized as similar commodities. However, if the raw materials, production enterprises and other factors of commodities can clearly indicate the source of commodities, consumers will not be mistaken, they should not be recognized as similar commodities. If there is a specific relationship between goods and services, and the use of the same or similar trademarks is likely to make consumers think that they are goods or services provided by the same enterprise, the goods and services should be regarded as similar.
for the convenience of registration and management; China has adopted the international classification table of goods and services for trademark registration, which divides goods and services into 42 categories, and each category is divided into several groups; At the same time, the Trademark Office also has internal standards for distinguishing similar goods. Although the above two standards are not the basis for classifying similar goods, they can be used as a reference for identifying similar goods. From the actual situation, there are thousands of kinds of goods and services. With the development of science and technology and the change of economic demand, some goods and services are not reflected in the classification table and the differentiation table. Moreover, what was similar in the past is not similar now, and what was not similar in the past may be similar now, not all of the same kind and group are similar, nor are they not similar in different classes and groups. This requires specific analysis in management, and is consistent with the standards mastered by registration. The judgment of similar goods should be based on the goods approved for use by the registered trademark, not on the goods actually used by the registered trademark owner.
Fourth, it is not based on the quality of the goods.
A trademark is a sign that distinguishes the source of goods, and it has the function of indicating the quality of goods, but it is not the main function; In the provisions of the Trademark Law, there is the content of supervising the quality of goods, but the main content is to protect the exclusive right to use registered trademarks. Therefore, specific to infringement cases, the quality of goods does not affect the identification of trademark infringement. If another person uses a trademark that is the same as or similar to the registered trademark without authorization, even if the quality of the goods is better than that of the owner of the registered trademark, it should also be regarded as trademark infringement. As for the behavior of the owner of a registered trademark that his goods are inferior in quality, shoddy or shoddy, which constitutes cheating consumers, other provisions of the Product Quality Law and the Trademark Law can be applied, which is not directly related to the determination of trademark infringement.
5. Not to choose from 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 prescribed by law. If the registrant violates the Trademark Law and the Detailed Rules for the Implementation of the Trademark Law in the process of using a registered trademark, relevant provisions can be applied to deal with it, requiring the registrant to bear corresponding administrative legal responsibilities, but it does not affect the determination of trademark infringement. In this case, if another person uses a trademark that is the same as or similar to the registered trademark without authorization, it shall be deemed as trademark infringement.
The illegal use of a registered trademark mainly includes: changing the words, graphics or their combination of a registered trademark by itself; stopping using it for three consecutive years; When using a registered trademark, the words or marks of registration are not marked. Because the exclusive right to use a trademark belongs to civil rights, if the owner of a registered trademark has the above-mentioned illegal use in the process of exercising his rights, that is, there is a subjective fault that leads to infringement by others, then the infringer may not be liable for compensation for infringement.
VI. Reasonable definition of normal use behavior
The unauthorized use of words and graphics identical or similar to registered trademarks by others does not all constitute trademark infringement rights: if such use is in a normal way, it does not constitute trademark infringement. For example, the trademark "Sanzhu" is a registered trademark used by one enterprise on drugs, and another enterprise uses the words "Sanzhu+Chinese herbal medicine" on the packaging of oral liquid products to show the ingredients of oral liquid products (verified by verification), that is, it is not a trademark or a commodity name, but a normal description of the goods. Even if it contains the words "Sanzhu", it does not constitute an infringement of the exclusive right to use the registered trademark of "Sanzhu". Another example is that a shoe factory registered the trademark "3544" on its footwear products, and the other two shoe factories used the words "35:44" and "35-44" on the bottom of their rubber shoes respectively. Because "35:44" and "35-44" are not normal ways to mark the size, model or specification of rubber shoes, they are not reasonable.
VII. Comprehensive measurement of other factors
In the process of identifying trademark infringement cases, in addition to the above-mentioned factors, other factors may be involved, such as the popularity, distinctiveness and specific use of trademarks, the relationship between parts and components of goods and the whole, and the subjective fault degree of disputed trademarks. Because other factors involved in the case are inconsistent, the determination of trademark infringement will be inconsistent. For example, the visibility of trademarks. Generally speaking, the higher the popularity of a trademark, the wider the scope of protection, and the greater the possibility of identifying trademark infringement when others use it without authorization. "POLARIS" is a registered trademark used in commodity factories such as watches and clocks. It is composed of three parts: Polaris in Chinese, Polaris in English and star graphics, and has a high reputation. Others used the trademarks of "Big Dipper" and "Time Star" on watch products, and the decoration of watch dial is the same as or similar to that of "North Star". From the perspective of trademarks, the characters and graphics of "Big Dipper" and "Time Star" are different from those of "North Star", so they may not be recognized as similar in general. However, considering that the trademark of "North Star" is a well-known trademark, it is recognized that the overall structure of "Big Dipper" and "Time Star" is similar to that of "North Star" and should be treated as trademark infringement. For another example, regarding the relationship between the parts and the whole of a commodity, if the parts and components are the main part of the whole commodity, and the way in which the parts and components are used in the whole commodity will make consumers misunderstand the source of the whole commodity, then the whole commodity can be identified as trademark infringement.