First, the application conditions for sound trademarks are stipulated. The revised Trademark Law expands the object of protection, cancels the requirement of "visibility" for registrable trademarks, and clearly includes sound trademarks in the category of trademarks that can apply for registration. In order to meet this requirement, the newly revised regulations clearly stipulate the conditions for applying for registration of sound trademarks. These formal requirements mainly include: (1) should be stated in the application; (2) explain the purpose of the trademark; (3) Submit qualified sound samples. According to the provisions of the Trademark Office, this sample should be in the form of CD, and the audio file should not exceed 5MB, and the format is wav or mp3. If submitted in paper form, the audio files of sound samples should be stored in CD-ROM; (4) Describe the sound trademark. If it is musical, this description can be in the form of staff or notation, and additional text description is needed; If the sound is non-musical and cannot be described by staff or notation, it must be described by words; (5) The trademark description should be consistent with the sound sample.
The second is to clarify the meaning of data message and how to determine the date when the data message file arrives at the competent authority and the parties. The revised Trademark Law stipulates that the relevant documents of trademark registration application can be submitted in written form or data message form. The newly revised Regulations clearly define the data message mode as the Internet mode.
How to determine the date of submission of documents by data message or the date of delivery of documents by Trademark Office and Trademark Review and Adjudication Board to the parties by data message is a common concern of the parties and has a great influence on them. The newly revised Regulations clearly stipulate that the date when a party submits a document in the form of a data message shall be the date when it enters the electronic system of the Trademark Office or the Trademark Review and Adjudication Board. If the Trademark Office or the Trademark Review and Adjudication Board serves the parties by data message, it shall be deemed to have been served after 15 days from the date when the document is issued.
The third is to clarify the operating procedures for applying for division. The revised Trademark Law stipulates the system of "one standard and many categories". In order to make the part of the goods or services that the applicant applies for registration encounter legal obstacles, so that the part that has not encountered obstacles will not be affected, continue the next registration procedure, and establish the exclusive right to use trademarks as soon as possible, the regulations specifically stipulate the corresponding application division system. If the Trademark Office rejects an application for trademark registration of some designated commodities, the applicant may divide the part of the application that has been preliminarily approved into another application, and keep the filing date of the original application after the division.
The fourth is to clarify the date calculation method of submitting documents through express delivery enterprises. With the rapid development of express delivery industry, it is more and more common for applicants to handle trademark business through express delivery companies. The original trademark law and regulations did not clearly stipulate how to determine the date when express delivery companies submitted relevant documents for trademark registration. There are also different views in practice. In order to safeguard the rights of the parties concerned and make them have a clear and reasonable expectation of the arrival date of the documents, the revised regulations stipulate that, except for the date of trademark registration application and the date when the parties submit documents or materials to the Trademark Office or the Trademark Review and Adjudication Board, the date when the documents or materials are submitted by express delivery enterprises other than postal enterprises shall prevail.
The fifth is to improve the specific procedures of trademark objection. The revised Trademark Law has improved the system of trademark registration objection. In order to implement this provision, the revised regulations increase the acceptance and rejection conditions of trademark objection applications, stipulate that the trademark office's decision not to register includes the decision not to register some designated goods, and clarify that the principle of handling new evidence submitted by the parties after the expiration of the legal time limit for objection procedures is: if the evidence produced after the expiration or the parties fail to submit it before the expiration for other legitimate reasons, the trademark office will submit the evidence to the other party after the expiration, and it can be accepted after cross-examination.
The sixth is to clarify the specific requirements for the filing of trademark use licenses. The original "Regulations" stipulated that the licensor should submit a copy of the contract to the Trademark Office for the record within 3 months from the date of signing the trademark license contract. First, it is required to report the license contract to the Trademark Office for the record, and second, it is required to submit an application for the record within three months. In practice, many parties are reluctant to submit their commercial contracts to the competent authorities for the record, thinking that these contracts involve trade secrets. The three-month period is relatively short for both parties, which is inconvenient for them to exercise their rights. The amendment to the regulations changed the "license contract filing" to "license filing", and also canceled the three-month time limit as "the licensor shall file with the Trademark Office within the validity period of the license contract and submit the filing materials". In addition, it is further clarified that the filing materials should explain the registered trademark licensor, licensee, licensing period, licensed goods or services and other matters.
In recent years, with the development of China's economic marketization and trademark cause, the trademark agency industry has gradually grown, and the number of trademark agencies and trademark agents has continued to grow rapidly. As of April 30th, 20 14, * * registered in the Trademark Office as a trademark agency 19300 (including 8282 law firms). According to statistics, in the past five years, more than 95% of the national trademark registration applications were submitted through trademark agencies. Trademark agency industry provides professional and meticulous services for China enterprises in trademark registration, early warning and rights protection, legal consultation and other aspects, which has played a positive role in the sound and rapid economic and social development of China.
However, with the gradual saturation of market share and the increasingly fierce competition, due to the serious shortage of high-quality trademark agents, there have been some chaotic phenomena in the agency industry, mainly as follows: the overall quality of trademark agents has declined, and some agents lack basic professional ethics; The vicious competition in the industry is prominent, and the trademark agency market is in disorder; Acts that harm the legitimate rights and interests of customers occur from time to time, seriously disrupting the normal market economic order; Trademark cases in which trademark agents maliciously rush to register other people's trademarks or hype causes adverse effects occur from time to time. These problems have a bad influence and strong social repercussions. Although the State Administration for Industry and Commerce and local industrial and commercial bureaus at all levels have made efforts to innovate regulatory measures and made some useful explorations and attempts, the results are not very obvious. The main reason is that laws and administrative regulations lack regulations on the management of trademark agency industry, and it is difficult to achieve effective supervision.
In this regard, the newly revised Trademark Law and the Regulations for the Implementation of the Trademark Law have made special provisions on strengthening the supervision of trademark agents, adding the following important contents:
First of all, it is clearly stipulated that trademark agencies should follow the principle of good faith, accept the entrustment to handle trademark matters, and have the obligation to keep confidential the business secrets of the principal they know in the process of agency.
Secondly, strengthen the obligations of trademark agencies. First, if the trademark applied for registration by the client may not be registered according to the provisions of the Trademark Law, the trademark agency shall clearly inform the client and put forward higher requirements for the quality and ability of the trademark agency. Second, if the trademark agency knows or should know that the client's application for registered trademark is cybersquatting, it shall not accept the entrustment. The third is to restrict the qualification of trademark agencies to apply for trademark registration, to prevent trademark agencies from maliciously registering other people's trademarks by taking advantage of their own business, which is conducive to promoting the professional and standardized operation of trademark agencies.
Third, clearly stipulate the responsibilities and penalties that trademark agencies should bear when they commit illegal acts, with emphasis on credit management and stopping acceptance.
The trademark law stipulates the illegal acts of trademark agents by enumerating, and the implementation regulations of the trademark law are further refined and broader, covering basically the illegal acts that are prone to occur frequently. Trademark agencies and persons who are directly responsible for illegal acts shall be strictly distinguished according to different situations, and their administrative, civil and criminal responsibilities may be investigated according to law.
Honesty and credit is the basic criterion of market economy, and strengthening the construction of trademark agency credit is the fundamental policy to rectify and standardize the agency market order. Strengthen credit management, build a credit management system through information collection, publicity and sharing, realize social co-governance, and achieve the purpose of strengthening market supervision and maintaining market order. According to the Regulations on the Implementation of the Trademark Law, a trademark agency shall submit its basic information and the employees of the trademark agency for the record, and the industrial and commercial department shall establish a credit file, notify the illegal acts of the trademark agency and record them in its credit file. This provision will play an important role in praising honesty, punishing dishonesty, guiding and standardizing trademark agencies to abide by the law and standardize their operations, increasing the cost of dishonesty of trademark agencies, and forming a situation of "one place is illegal and everywhere is limited".
The Trademark Law stipulates that the Trademark Office and the Trademark Review and Adjudication Board may stop accepting the trademark agency business handled by a trademark agency if its illegal acts are serious. Stopping the acceptance means that the illegal trademark agency has actually lost the qualification to engage in trademark agency business such as trademark application and trademark examination within a certain period of time, and has also lost the credibility foundation for continuing to engage in trademark agency business. Stopping the combination of acceptance and credit management and implementing "market ban" on institutions and personnel with serious illegal circumstances can effectively combat, deter and prevent trademark agency violations.
The newly revised Trademark Law and Regulations on the Implementation of Trademark Law respond to social concerns and make targeted provisions on the outstanding problems existing in the trademark agency industry. The measures are powerful and operational, which have well realized the combination of leniency and severity, provided a clear legal basis for trademark administrative law enforcement, played an important role in strengthening the supervision of trademark agencies, maintaining fair market order and safeguarding the legitimate rights and interests of trademark applicants, and will certainly have a significant and far-reaching impact on the development of China's trademark industry.
With the development of social economy, more and more commodity producers or service providers need to conduct business activities in many countries or regions. As a symbol used to distinguish the source of goods or services in commercial activities, the registration and protection of trademarks follow the principle of regionality, which creates the demand for commodity producers or service providers to apply for registered trademarks abroad. When an applicant applies for a registered trademark by means of national registration, he/she needs to submit an application for trademark registration to the competent trademark authority of each country or region according to the different legal provisions of each country or region, and other follow-up businesses related to the trademark applied for registration also need to apply in each country or region. In this context, the Madrid system of international registration of trademarks was born, which provided applicants with different application channels from the above-mentioned country-by-country registration.
Madrid system of international registration of trademarks consists of madrid agreement concerning the international registration of marks (hereinafter referred to as Madrid Agreement) and Madrid Protocol on International Registration of Trademarks (hereinafter referred to as Madrid Protocol). Madrid system of trademark international registration provides a low-cost, high-efficiency and easy-to-operate way for trademark applicants. Applicants can apply for trademark registration in many countries or regions by submitting their applications in one language and paying fees to one bureau (namely the International Bureau). After the applicant handles the international registration of a trademark, the follow-up business related to the international registration of a trademark only needs to go through a procedure in the International Bureau and pay a fee to complete the registration. China acceded to the Madrid Agreement and the Madrid Protocol on 1989 and 1995 respectively. Therefore, the international registration of trademarks through Madrid system in China should follow the system established by the above two international treaties.
Before the revision of the Trademark Law, the normative document related to the international registration of trademarks in China was Order No.7 of the State Administration for Industry and Commerce, that is, the Measures for the Implementation of Madrid International Registration. As Order No.7 is a normative document formulated by the institutions directly under the State Council, its legal effect level is low and its influence is limited, which is not conducive to giving full play to the advantages of international trademark registration through Madrid. At the same time, the court can't directly apply it when trying cases. Both the practice of trademark international registration and judicial practice require improving the effectiveness level of domestic legal norms related to trademark international registration.
After the revision of the Trademark Law, according to the provisions of Article 21, a special chapter on international registration of trademarks was added to the Regulations for the Implementation of the Trademark Law, which stipulated the relevant contents of international registration of trademarks in Madrid, realizing the transformation from international law to domestic law, which not only facilitated the practice of trademark authorities and judicial departments, but also facilitated the rights protection of trademark owners, which was of great significance to promoting the Madrid system of international registration of trademarks and raising the awareness of domestic applicants on international registration of trademarks.
Based on the Implementation Measures of Madrid International Registration, this chapter has deleted some outdated clauses, and revised and improved the clauses according to the development trend of international treaties and the revised Trademark Law, mainly including the following contents:
(1) The international registration of trademarks applicable to this chapter is limited, and the adjustment targets are clearly the international registration of trademarks with China as the country of origin, the application for territorial extension of China and other related applications.
(2) Defining the qualifications of applicants for international registration of trademarks with China as the country of origin, as well as the conditions and basic procedures for applying for international registration of trademarks and subsequent applications, mainly involves the application of international treaties.
(3) It stipulates the review procedure for the application for territorial extension of China. Where a three-dimensional mark, a color combination and a sound mark need to be protected as a trademark or a collective trademark or a certification trademark, relevant materials shall be submitted to the Trademark Office through a legally established trademark agency within 3 months from the date of registration of the trademark in the International Register of the International Bureau. If the relevant materials are not submitted within the prescribed time limit, the Trademark Office will reject its application for territorial extension.
(4) The procedure for objecting to the application for territorial extension of China is stipulated. Because the Trademark Office does not publish the examination conclusion after examining the application for the extension of the designated territory of China ex officio, the time for raising objections to internationally registered trademarks is also different from the provisions of Article 33 of the revised Trademark Law. An objector who meets the conditions stipulated in Article 33 of the Trademark Law may file an objection with the Trademark Office within three months from the first day of the month following the publication of the international trademark announcement of the World Intellectual Property Organization.
(5) It stipulates the follow-up procedures related to the application for territorial extension of China, including renewal, transfer and deletion, mainly involving the connection between domestic laws and international treaties. The term of validity of an internationally registered trademark protected in China shall be counted from the date of international registration or the date specified later. Before the expiration of the validity period, the registrant may apply to the International Bureau for renewal. If no application for renewal is made within the validity period, a grace period of 6 months can be given. When transferring an internationally registered trademark, the transferee shall abide by the provisions of international treaties, and at the same time, according to the provisions of the Trademark Law, the transferor shall transfer the same or similar trademarks on the same or similar goods or services together. The provisions on the application for deletion mainly involve the requirements that the scope of the deleted goods or services should meet.
(6) In view of the differences between Madrid System and Trademark Law in system design and specific provisions on internationally registered trademarks, the Trademark Law and the Regulations for the Implementation of the Trademark Law can be excluded. The application for territorial extension of designated China does not apply to the review period of domestic application for registered trademarks, nor does it apply to the provisions of commodity division. For an internationally registered trademark that has been challenged, the Trademark Office shall not apply the provisions of the Trademark Law on the time limit for hearing objections. When a trademark registrant changes the name or address of the registrant, it shall change all its registered trademarks, and the stipulation that the assignor and the assignee shall apply for trademark transfer procedures at the same time does not apply to the international registration change and transfer of trademarks.
The revision of the contents of trademark examination in the Regulations on the Implementation of the Trademark Law (hereinafter referred to as the Regulations) closely focuses on the requirements of the Trademark Law in facilitating parties to apply for registration and maintaining fair competition market order, and further implements the requirements of the Trademark Law in simplifying and optimizing authorization confirmation procedures and intensifying the crackdown on malicious registration, which will play an important role in protecting the legitimate rights and interests of the parties in trademark review cases, standardizing the specific administrative actions of trademark authorization and confirmation, and maintaining a fair and efficient order of trademark authorization and confirmation.
Firstly, the definition of "trademark review" is given.
Article 2 of the Trademark Law stipulates that the Trademark Review and Adjudication Board shall handle trademark disputes, which is specifically stipulated in several laws in Chapters III, V and VI. Article 51 of the Regulations defines "trademark review" for the first time, clearly defines the scope of trademark review and adjudication board's handling of "trademark disputes", enumerates the specific provisions of the Trademark Law, and further clarifies the legal basis for trademark review and confirmation.
Second, the provisions of the Trademark Law on adjusting the objection procedure are refined.
In view of the adjustment of the objection procedure in the Trademark Law, the nature of the review procedure for non-registration has been repositioned in the Regulations. While clarifying the nature of "review", we should consider the particularity of trademark confirmation procedure and give full play to the function of review procedure in stopping malicious cybersquatting. Article 53 of the Regulations stipulates the contents and procedures for the Trademark Review and Adjudication Board to hear cases of disapproval of registration, and makes it clear that the Trademark Review and Adjudication Board should listen to the opinions of the original objector while hearing the decision of the Trademark Office not to register.
Third, it is more conducive to safeguarding the legitimate rights of the parties to the review case.
The Trademark Law clearly stipulates the time limit for the Trademark Review and Adjudication Board to hear all kinds of cases, which is conducive to improving the trial efficiency and protecting the legitimate rights and interests of the parties.
Four, to further standardize the specific administrative acts of trademark authorization and confirmation.
The Trademark Review and Adjudication Board is authorized by the Trademark Law to hear trademark review cases, which belongs to the category of specific administrative acts and should follow the basic principles of administration according to law. The trial scope of all kinds of review cases is not only an effective basis for the Trademark Review and Adjudication Board to hear all kinds of cases, but also strictly defines the scope of the Trademark Review and Adjudication Board to exercise its functions and powers.
Fifth, it highlights the actual needs and operability of the work.
The Regulations also stipulate some ambiguities in practice. For example, article 12 clearly stipulates the starting date and specific calculation method of the general period, and makes special provisions on the calculation of the protection period of the exclusive right to use a trademark; Article 49 Where it is clearly stated that the request for international registration of a trademark is invalid, it shall be filed after the time limit for rejection expires or the administrative decision takes effect; Article 61 stipulates that if a party withdraws his application for reexamination, it shall be examined and confirmed by the Trademark Review and Adjudication Board. These provisions help the parties to understand the rights conferred by law and use legal procedures to safeguard their legitimate rights.