Hello, regarding the survival of trademarks, you can refer to the following, content reference-Trademark survival-Baidu Encyclopedia

1. Determination of characteristics of logos Is it possible for a trademark to survive?

First of all, the practical limitations of the logo combination elements determine the possibility of a trademark's existence. Although the trademark law of mainland my country, like the trademark laws of other countries or regions, tries to widen the range of trademark combination elements that can be selected, in theory, the combination elements available for people to choose are diverse and unlimited. But in fact, because a trademark is like a person’s business card, it needs to be concise, easy to remember, and prominent in order to quickly attract people’s attention. Trademarks must be both concise, easy to remember and recognisable. In this way, the number of combination elements specific to a certain logo is limited to a predictable range, returning the infinity of theory to the finiteness of reality.

Secondly, personal likes and dislikes, cultural background, and thinking patterns once again narrow the range of available combination elements. Subject to their own cultural accumulation, people always have a special liking for elements that they are familiar with and emotionally attached to, such as those elements that are related to their mother tongue and traditional culture. Those elements that people don't like or violate cultural taboos are kept away or avoided. For example, "four" and "mulberry" are homophones for "death" and "mourning" respectively and are generally avoided. Black is generally not used prominently in one's own design. On the logo, etc. In this way, the scope of combined elements is further reduced.

Thirdly, the inherent characteristics of Chinese characters in our country make the range of choices for specific text logos more compressed. Due to the limitations of the inherent culture and the original materials that can record words, the number of Chinese characters in our country is limited, with only more than 5,000 commonly used characters, and the most collected ones do not exceed 100,000 characters. Moreover, each Chinese character has an independent meaning and fixed pronunciation. At the same time, it has the same pronunciation. There are many synonyms. Just like people's names, using some Chinese characters that are too uncommon is neither easy to recognize nor easy to remember. Therefore, the number of Chinese character identifiers that are neither identical nor similar is very limited. Fourth, the subjectivity of choosing a logo and the limitations of people's creativity are also factors in the limited nature of logos. People always decide which logo to choose as their trademark based on their existing understanding and value pursuit, and people's creativity is not unlimited. Even original logos are the result of standing on the shoulders of their predecessors.

2. The essence and function of a trademark determine the possibility of its existence

First of all, the essence of a trademark makes it possible for the legal existence of a trademark. The non-material nature of trademarks determines that rights holders cannot have exclusive monopoly on trademarks like other tangible objects. It is very likely that multiple people will create and use the same or similar marks at the same time. And its public interest attribute does not allow the law to forcefully grant its rights holders absolute exclusive interests. In this way, it is a normal phenomenon for conflicting trademarks to be independently used and registered by multiple people at the same time without malicious intent. Moreover, it is easier for people to be inspired by a prior logo and create a similar logo based on it and use it as a trademark. Even if it is examined based on copyright law, as long as it has a certain degree of creative height, its originality will be recognized. Then this kind of originality Contradictory signs that are sexual rather than simple imitations should also be allowed to exist legally under certain conditions. Therefore, whether it is a fictitious trademark, an arbitrary trademark, or a suggestive or descriptive trademark, its knowledge attribute makes the existence of conflicting trademarks a very real problem.

Secondly, the identification of trademarks also allows the existence of conflicting trademarks. The identification of a trademark cannot be automatically considered to have lasting and stable identification just because its originality has acquired a certain degree of distinctiveness. Recognition must be achieved through long-term and continuous use. Only by this use can the trademark leave a deep imprint in people's minds, so that although people may not know exactly the specific manufacturer or provider, the goods marked on them will be recognized by the certainty of the trademark. Enough to make people perceive the uniqueness of the source. The perception of uniqueness of this source will vary depending on the product itself, consumer groups, sales channels, etc. Therefore, trademarks that have been used for a long time have certain recognition rather than possible recognition. The result of this long-term use may be that while this kind of recognition enhances and accumulates huge commercial benefits, there is also a huge risk, that is, this effect also increases the possibility that future generations' trademarks will be similar to it. .

3. The cumulative commercial value of trademarks makes it especially easy for unregistered trademarks to become existing objects

The arrival of an era of attention economy has made people’s attention become The scarcest resource today. Competing for public attention is the crux of business today, as evidenced by the overwhelming amount of advertising. Based on this, today's economy is also considered a so-called "eyeball" economy. Therefore, the development of business and the realization of business interests must not ignore the use of people's attention. The recognition of a trademark is enhanced precisely by attracting the attention of consumers or potential consumers, or more directly, the public. The stronger the recognition of a trademark, the more commercial profits or commercial interests it can accumulate. Therefore, a trademark must be used for a long time and require a lot of investment to accumulate its commercial value. In this accumulation process, on the one hand, the trademark is not very public or exclusive in the early stage. If others use a conflicting trademark in good faith at the same time or previously and has a certain influence, the law does not grant it a prohibition. The right of others to continue to use; if after the trademark has a certain degree of popularity, due to its openness and good commercial interests, profit-seeking drives people to copy or transform the logo and form a similar logo to use as their own trademark. This is especially true for unregistered trademarks. Because use cannot be presumed to have publicity effect within the entire legal scope from the date of registration like registration, an unregistered trademark cannot seek legal protection as much as a registered trademark. In the process of its transformation from low-profile to well-known, conflicting trademarks can easily be used by others at the same time. Especially nowadays, when distance is no longer enough to constitute an obstacle to information transmission, information can be learned by others almost instantly, such as the Chinese version of "google". An example of this is when a translated domain name is maliciously registered by others. However, the difficulty of proving the starting point of use makes it a reality that a later trademark will coexist with an earlier unregistered trademark.

4. The nature of the exclusive right to use a trademark leads to the existence of the trademark

This is an argument based on the exclusive right to use a registered trademark. The exclusive right to trademark is essentially a type of private right or civil right. It has the basic attributes of private rights: the right holder has the right to make decisions independently, as long as such disposal does not violate the mandatory provisions of the law and the basic principles of the law. This is private law autonomy. Based on the autonomy of private law, the owner of the exclusive trademark right can not only share part of the exclusive rights of his own trademark with others on a legal basis, if permitted to use it, but also tolerate others using signs that conflict with his own trademark, including Trademarks; you can also take the initiative to sign a deposit agreement for conflicting logos (trademarks) with others, restricting the scope and method of use of both parties, such as the settlement between "Hengsheng" and the owner of "Hengsheng". The autonomy of private rights is also reflected in the existing phenomenon caused by the prior right holder’s express consent or tacit consent to the existence of a later conflicting trademark. Therefore, there are roughly three reasons for the existence of trademarks caused by the private nature of trademark exclusive rights: the explicit consent of the prior right holder; the passage of a period of tacit approval or exclusion; and agreement.

5. People’s profit-seeking nature and the imperfect market economy lead to the existence of trademarks

Human nature is profit-seeking, which determines that the vast majority of people want to compete in a relatively To maximize personal interests in a short period of time, this is especially true under the current background of money supremacy, quick success and government corporatization in our country. In business, there are many factors to achieve this goal, and it is undoubtedly a convenient way to use the goodwill or market credit of an existing trademark to attract attention and promote your products to quickly occupy the market. Therefore, in commercial activities, people will naturally focus on those trademarks with huge market shares or huge market potential, and then imitate or use "a little sweat on the forehead" or almost "no sweat" logos as trademarks. , which will undoubtedly lead to the existence of a trademark that is identical or similar to the previously used trademark. In my country, the market economy started late, the market is very unstandardized, and operating costs and risks are also very high. In addition, the trademark registration application cost caused by the trademark registration mechanism is undoubtedly a large expense for operators in the early stage. Therefore, at the beginning of the business or before, people had insufficient awareness and motivation to apply for registration (previous phenomena of squatting and reselling registered trademarks had no negotiable value because they violated the original intention of the trademark system), and they were self-conscious about their unregistered trademarks. The protection awareness is not strong or there is no time to consider the future interests of one’s own trademark. When your unregistered trademark already has a large market value, you may find that others are also using or have registered identical or similar trademarks.

At this time, it is difficult to prove that one's own prior use is well-known and that others have malicious intent or unfair competition purposes, making self-protection impossible. And this impossibility has led to the existence of conflicting trademarks becoming a fact. The "Really Miss You So Much" trademark case has such a situation.

6. The trademark system itself increases the possibility of the existence of conflicting trademarks

The trademark system includes a substantive rights system and a claim protection system. In other words, the trademark system While the law stipulates substantive rights, it also sets up procedures for the acquisition, opposition, and cancellation of exclusive rights to trademarks. It is precisely because the trademark law has both substantive and procedural aspects that it presets a legal space for the existence of trademarks.

First of all, the trademark ownership system and the trademark licensing system are the legal reasons for the existence of the same trademark belonging to different entities.

Secondly, in prior rights, due to the limited prohibitive and confrontational effects of unregistered trademark rights, it is possible for these unregistered trademarks to exist with subsequent conflicting trademarks.

Third, the trademark registration review system and rights conflict resolution mechanism determine the possibility of the legal existence of conflicting trademarks. First, the judgment of similar logos is subjective, so no matter how rigorous the system is, it cannot guarantee that the existence of similar logos will be completely prevented. Second, the inconsistency between the review perspective required by law and actual work results in the existence of conflicting trademarks. The law requires that the standard for determining whether a trademark is identical or similar is based on the perception of the relevant public. However, my country's conflict resolution mechanism for conflicting trademark rights has not introduced market surveys, so whether the relevant public is confused or not has become a theoretical or conceptual assumption. In actual work, examiners and judicial personnel replace the relevant public in making determinations from their own perspective. In this way, the probability of mistakes increases. Therefore, this inconsistency in judgment perspectives also creates opportunities for the existence of approximate logos. Third, the number and energy of examiners are limited, so mistakes are inevitable. It would be unfair for the applicant to bear the consequences of the existence of similar or identical trademarks due to the examiner's mistakes. Fourth, regardless of whether the prior trademark is registered or not, the private nature of trademark opposition, cancellation and other claims also provides opportunities for conflicting trademarks to exist. Both the substantive rights of a trademark and the right of claim thereon are private rights. This right can be freely exercised by the right holder. At this time, the right may or may not be exercised. Failure to exercise it within a certain period will result in the existence of a conflicting trademark.

Fourth, the setting of the relevant period also provides opportunities for trademark preservation. In order to ensure the stability and predictability of rights, the Trademark Law stipulates the exclusion period or statute of limitations for the exercise of various claim rights. The essence of these periods is that the law not only gives rights holders sufficient rights to seek protection for their legitimate interests, but also gives rights holders restrictions on the exercise of their rights. Otherwise, the stability of rights, the stability of legal relationships, and the stability of the market economy will be adversely affected. Huge negative impact. The period in trademark law has this effect: if the right holder does not exercise its rights during these periods, once the period has passed, the conflicting rights will legally exist. If the right holder of a previously used and well-known unregistered trademark or a previously registered trademark does not claim prior rights to a later registered identical or similar trademark within the specified period, once the period has expired, unless the later trademark is used exclusively The right holder has bad faith or unfair competition purposes when applying for registration. Otherwise, the trademark is legal and exists as an earlier trademark. The same situation exists among unregistered trademarks.