On March 9, 2006, when inspectors from the Xinqiao Industrial and Commercial Office of Wenzhou Ouhai Industrial and Commercial Branch were conducting a routine inspection of a clothing company in Wenzhou, a familiar trademark came into the inspector’s sight—“ONLY” ", this is a well-known fashion women's clothing brand, which also has many stores in Wenzhou. Inspectors seized 2,920 finished women's T-shirts marked "ONLY" at the company's production workshop. The item number of this batch of women's T-shirts is 112. The collar and hangtag are marked with the "DAIWEI" trademark. The front of the clothes is marked with a combination of English and Arabic numerals strung with beads: ONLY 4 YOU, arranged in three lines, with a larger font. (see picture). Since the party concerned could not provide the relevant license documents authorizing the use of the "ONLY" trademark, the Ouhai Industrial and Commercial Bureau detained the above-mentioned women's T-shirt on that day for suspected trademark infringement.

After preliminary investigation, it was found that the batch of women's T-shirts was produced by the parties in accordance with the customer's order requirements. The order quantity was 3,000 pieces, and 2,920 pieces have been produced and are ready to be sold to the Middle East. ONLY is a women's clothing brand under Bestseller Group. The trademark was registered in China on September 21, 2000, with the registration number 1447254. Bestseller Group is a well-known international fashion company in Europe. The group was founded in 1975 and is headquartered in Brande, Denmark. Bestseller owns four well-known brands: ONLY (women's clothing), VERO MODA (women's clothing), JACK&JONES (men's clothing) and EXIT (children's clothing).

After the case was filed, the two people handling the case put forward two completely different views on whether the party’s behavior constituted trademark infringement. A believed that the party used the same product as others on the same product without the permission of the trademark registrant. Registered trademarks with the same trademark have violated the provisions of Article 52, Paragraph 1 of the Trademark Law of the People's Republic of China, and constitute trademark infringement. B believes that the party’s use of the word ONLY on its women’s T-shirt products is a reasonable use of the “ONLY” trademark, and proposes the following reasons:

1. The party does not use the word ONLY as a trademark Subjective intention

The combination of three words ONLY 4 YOU marked on the front of the clothing produced by the party may be based on such a design concept: ONLY means "only, only" in Chinese, and the Arabic numeral 4 The English word FOUR has the same pronunciation as FOR (for). The pronunciation of ONLY 4 YOU, ONLY FOR YOU, translates into Chinese as "only for you (only for you)". The parties involved did not deliberately use ONLY as a trademark. Besides, "4 YOU" is also a registered trademark (registration number: 879425), and the registrant is Danish Four Friends Co., Ltd. According to Person A, the party concerned has committed trademark infringement on two different trademarks at the same time. If the DAIWEI trademark is marked on the collar and tag, then the women's T-shirt is already marked with three different trademarks. What is the purpose and intention of the party involved in doing this? Does the party concerned (or the customer who entrusts its production) believe that marking (or fraudulently using) multiple trademarks on the same product will bring more help to the sales of the product? It's obviously difficult to understand.

The party marked the "DAIWEI" trademark on the collars and hangtags of its women's T-shirts and other clothing products in the places where trademarks are usually marked, which is enough to distinguish other brands. As for the front of the clothing, it uses a combination of words containing the word "ONLY" , the purpose is to express a design concept, there is no unfair competition or free-riding attempt, and generally this use will not lead to misidentification of the source of the product, then this should be regarded as fair use.

Since the parties have no subjective intention to use ONLY as a trademark, and the word ONLY on the front is not objectively enough to identify the source of the goods, consumers will basically not confuse the goods based on this word. , then this use will not infringe the trademark rights, but fall within the scope of fair use.

For example, there is a case in the United States: the well-known brand Pepsi-Cola once prominently used the word "No. 1" in its TV commercials, print ads and its delivery trucks, and "No. trademark, PepsiCo was sued over this. However, during the trial, the court held that the main purpose of using this word in various Pepsi-Cola advertisements was to show that Pepsi-Cola's beverage quality was No. 1 based on the above standards. Pepsi-Cola itself is a well-known brand. This statement of quality first is not enough to confuse consumers about the source of the product. It should be within the scope of fair use and does not constitute an infringement of the "No. 1" trademark right.

2. The parties concerned did not deliberately emphasize the significance of the text.

If the user places someone else’s registered trademark in a prominent position on the product, or even enlarges the font, adds bright colors, performs artistic processing, etc. in order to attract attention, and uses other descriptive words and his own If a registered trademark is placed in an inconspicuous place, it is easy to infer that the user has the subjective intention of free riding, and objectively it is easy to cause consumers to confuse the source of the product, which should not fall within the scope of fair use. Although the party involved in this case marked the word ONLY in a prominent position on its products, it did not use it prominently. Among the two words and one number on the front of the women's T-shirt (i.e. ONLY 4 YOU), only the Arabic numeral 4 was used. It is used prominently and the other two English words are relatively small. Moreover, the combination of "ONLY 4 YOU" has its design intention and can completely express a certain meaning. This expression is widely used in English. For example: "P2P" currently widely used on the Internet is "peer-to- The abbreviation of "peer", peer has the meanings of "equal (status, ability, etc.)", "colleague" and "partner" in English. Since to has the same pronunciation as 2, it was directly replaced. In this way, P2P can also be understood as "partner to partner", and many existing services on the Internet can be classified into the ranks of P2P. Instant messaging systems such as ICQ, AOL Instant Messenger, Yahoo Pager, Microsoft's MSN Messenger and China's Tencent QQ are the most popular P2P applications.

3. The rights of the parties to use commonly used words normally should be respected

In addition to the unique vocabulary composition, a large number of word trademarks are common words. These words have universally recognized meanings in daily life, and have become social wealth and are widely used. They are irreplaceable when expressing their original meanings. "ONLY" is a widely used English word (an adjective or adverb in English). After being registered as a trademark, if it is monopolized without restriction and the public cannot use it, it will be against the interests of the public. , which is inconsistent with the legislative purpose of the Trademark Law. In other words, the purpose of granting exclusive rights to a trademark is only to prevent others from selling the goods as the rights holder's goods. If the trademark is used not to deceive the public, it can be understood as fair use. Trademark law gives trademark owners the right to actively use their trademarks, and also gives them the right to exclude others from interfering with their trademark rights. However, this exclusive right is not unlimited. The scope of its exclusion should be limited to prohibiting others from using the goods to identify goods. source, and cannot prohibit other uses. When designing and producing clothing, the party wanted to express a complete design concept with the word "ONLY 4 YOU". Will he lose the right to use the word "ONLY" because the word "ONLY" has been registered as a trademark? "ONLY" is a commonly used English vocabulary, it is a unique product of human civilization!