On June 17, 2020, the State Intellectual Property Office promulgated the "Trademark Infringement Judgment Standards" (hereinafter referred to as the "Standards"), which is an important standard formulated by the State Intellectual Property Office after the institutional reform. Normative documents. The "Trademark Infringement Judgment Criteria" is an important part of the State Intellectual Property Office's guidance on trademark law enforcement. The "Standards" refine the relevant provisions of trademark infringement in the "Trademark Law" and "Trademark Law Implementation Regulations", including the use of trademarks, the same goods, similar goods, the same trademark, similar trademarks, confusion, sales exemption, conflict of rights, The provisions on suspension of application, identification of right holders, etc. have been detailed, clarified some long-term unclear issues in law enforcement, and improved some controversial practices. The promulgation of the "Standards" will play a clear guiding role in the administrative enforcement work of trademark enforcement-related departments at all levels and greatly promote the improvement of the professional level of law enforcement personnel. The "Standards" will also be an important guide for trademark lawyers, agents and other legal practitioners.

The author has researched the key legal provisions in the "Standards" and collected relevant administrative and civil judicial cases. Now I will share my research experience with everyone, hoping to inspire others.

1. About use within the meaning of the Trademark Law

Article 3 To determine whether a trademark infringement is constituted, it is generally necessary to determine whether the alleged infringement constitutes use of a trademark within the meaning of the Trademark Law.

The use of trademarks refers to using trademarks on goods, product packaging, containers, service venues and transaction documents, or using trademarks in advertising, exhibitions and other commercial activities to identify goods. or the behavior of the service source.

Interpretation

This article on the use of trademarks is basically consistent with Article 48 of the Trademark Law, with the addition of relevant content on the use of service trademarks. To determine whether trademark infringement is established, we must first determine whether there is "use within the meaning of trademark law." The fundamental attribute of a trademark is to identify the source of goods or services. If it cannot reflect this attribute, it cannot be counted as use within the meaning of trademark law. If the logo or text on the product is not used as a trademark, there is no trademark infringement. Article 59, Paragraph 1 of the Trademark Law stipulates: “The registered trademark contains the common name, figure, model of the product, or directly indicates the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the product. , or the place name containing it, the owner of the exclusive right to a registered trademark has no right to prohibit others from using it properly. "If others use the above-mentioned words, graphics and other signs without trademark attributes, it is not used within the meaning of the trademark law and does not constitute trademark infringement. Of course, non-trademark use is not limited to the circumstances stipulated in Article 59, Paragraph 1 of the Trademark Law. It is necessary to analyze whether the relevant logo plays a role in indicating the source of the goods or services based on the specific circumstances. In Case 1, Unilever uses words such as "dandruff disappears and is impeccable" on its shampoo, which is obviously a description of product features and can be regarded as an advertising slogan. Consumers will not think "impeccable" after seeing it. It is a trademark, so it will not conflict with the "impeccable" registered trademark of the China Association of Science and Technology Research Institute, and it is impossible to infringe its trademark exclusive rights. In Case 2, Anshi Venture Company applied for registration of the "Anshi" trademark, but its use of the trademark was irregular, which caused the "Anshi" trademark to be diluted and lost the function of the trademark to indicate the source of the goods. However, Yazhu Weiye Company's labeling of "natural anthracite powder" on its products is only to indicate the name of the product and does not constitute trademark use.