What are the defense grounds for trademark infringement

1. The plaintiff’s litigation subject is not qualified to defend

According to the "Supreme People's Court's Laws Applicable in the Trial of Trademark Civil Disputes" "Interpretation of Several Issues" stipulates that the plaintiff in a trademark infringement lawsuit shall be the owner or interested party of the registered trademark. Interested parties include the licensee of the registered trademark use license contract, the legal successor of the property rights of the registered trademark, etc. When the exclusive right to use a registered trademark is infringed upon, the licensee of the exclusive use license contract may file a lawsuit with the People's Court; the licensee of the exclusive use license contract may file a lawsuit together with the trademark registrant, or may file a lawsuit before the trademark registrant. If you do not want to sue, you can file a lawsuit on your own; the licensee of a general use license contract can file a lawsuit if expressly authorized by the trademark registrant. Therefore, the plaintiff's subject should comply with the above provisions. If the plaintiff does not meet the above provisions, the defendant can raise the defense that the plaintiff's subject of litigation is unqualified.

2. Non-identical and non-similar defenses

According to the provisions of the Trademark Law, the use of the same registered trademark on the same or similar goods without the permission of the trademark registrant or similar trademarks; selling goods that infringe the exclusive rights of registered trademarks; changing the registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark back into the market; counterfeiting or making without authorization the logo of another person’s registered trademark or selling counterfeit , creating registered trademark signs without authorization; causing other damage to others’ exclusive rights to use registered trademarks; the above behaviors are all infringements of the exclusive rights to use registered trademarks. Therefore, the defendant should base its defense on the plaintiff’s specific claims. Here, we only use the claim that a trademark that is identical or similar to the registered trademark is used on the same or similar goods without the permission of the trademark registrant as an example.

First determine the scope of the exclusive right to register a trademark, which should be limited to the trademark approved for registration and the goods approved for use. It cannot be based on the trademark actually used by the owner of the registered trademark and the goods actually used by the trademark. Then determine the specific objects accused of infringement, firstly, the trademark accused of infringement, and secondly, the goods used by the trademark accused of infringement. Next, compare the alleged infringement object with the registered trademark and the goods for which the registered trademark is used, and determine whether the alleged infringing trademark is the same or similar to the registered trademark, and whether the goods used for the alleged infringing trademark are the same as those for which the registered trademark is used. Verify whether the goods used are of the same type or similar. When judging similar trademarks, the so-called similarity needs to reach a level that is likely to cause confusion, that is, the trademark is used on the same or similar goods as the goods for which the registered trademark is approved, and ordinary consumers may have a wrong understanding of the source of the goods. Specific comparison methods of isolated observation, overall observation and key part observation should be used when comparing. After the above comparison, if it is concluded that the trademarks are not identical or similar or the products do not belong to the same kind of goods or similar goods, it can be determined that there is no infringement.

3. Defense of prior rights

The "Trademark Law" stipulates that applying for trademark registration shall not damage the existing prior rights of others, nor use unfair means to preemptively register a trademark that has been used by others. and has a certain influence on trademarks. Therefore, if a registered trademark conflicts with the legal rights of the alleged infringer (such as a business name), you can use prior rights as a defense to claim that you do not constitute infringement.

4. Common name defense

The "Trademark Law" stipulates that trademark registration using the common name of the product will not be registered (except for those that have acquired distinctive features through use and are easy to identify) . Therefore, if a trademark is a common name for goods, even if it is registered, the common name defense can still be considered as long as it meets the following characteristics: the registered trademark is a common name for goods by convention and has a wide geographical range of use; the common name has no use as a trademark Obtain distinctiveness; the common name is only a part of the registered trademark and cannot restrict others from using the common name of the product; the trademark owner containing the common name has no right to prevent others from using the common name as an integral part of the trademark.

5. Fair use defense

The Trademark Law stipulates that place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks. However, exceptions are made where place names have other meanings or are part of collective trademarks or certification marks; registered trademarks using place names will continue to be valid.

According to the above regulations, trademarks containing place names above the county level, while allowing registration, also limit some rights of the trademark owner, that is, they cannot restrict others from reasonable use of the place names. As long as it does not cause confusion or misunderstanding among the relevant public, it does not constitute infringement.

6. Defense on the legal origin of the goods sold

The "Trademark Law" stipulates that if you sell goods that you do not know are infringing the exclusive rights of a registered trademark, you can prove that you obtained the goods legally and explain The provider shall not be liable for compensation.

7. Limitation of action defense

If the plaintiff's lawsuit exceeds the statute of limitations, he can raise a limitation of action defense and claim that the plaintiff's claim should not be supported.

8. Defense against cancellation of registered trademark

According to the provisions of the Trademark Law, if a registered trademark violates the provisions of Articles 10, 11 and 12 of the Law, Or if the registration is obtained by deception or other improper means, the Trademark Office shall revoke the registered trademark; other units or individuals may request the Trademark Review and Adjudication Board to rule on revoking the registered trademark. If a registered trademark violates the provisions of Articles 13, 15, 16, and 31 of the Law, within five years from the date of trademark registration, the trademark owner or interested party may request a trademark The review committee ruled to cancel the registered trademark. For cases registered in bad faith, the owner of a well-known trademark is not subject to the five-year time limit.

Therefore, if the plaintiff’s trademark meets the above conditions, the defendant can file a cancellation application with the Trademark Review and Adjudication Board to deny the plaintiff’s trademark rights. Once the Trademark Review and Adjudication Board accepts the cancellation application, the defendant can apply to the court to suspend the trial accordingly, and attach a copy of the cancellation application and evidence. The court will decide whether to suspend the trial based on the reasons and evidence for the withdrawal application. How to identify trademark infringement

1. Determine the scope of exclusive rights of registered trademarks.

2. Determine the specific object accused of infringement.

3. Compare the alleged infringement object with the registered trademark and the goods approved to be used by the registered trademark, and determine whether the alleged infringing trademark is the same or similar to the registered trademark, and whether the alleged infringing trademark is used Whether the goods are of the same category or similar to the goods for which the registered trademark is used.

4. Through the three steps of identifying infringement, especially by comparing the alleged infringement object with the registered trademark and the goods approved for use by the registered trademark, we can determine whether it constitutes trademark infringement. What are trademark infringements

What is trademark infringement

1. Trademark infringement means that the perpetrator uses the same registered trademark on the same or similar goods without the permission of the trademark owner. or similar trademarks.

2. Or other behaviors that interfere with or hinder the trademark owner from using its registered trademark and damage the legitimate rights and interests of the trademark owner.

3. The infringer is usually responsible for stopping the infringement, and the perpetrator who knows or should have known that the infringement is infringement is also responsible for compensation.

4. If the circumstances are serious, you will also bear criminal liability.

5. The perpetrator sells goods that he knows or should have known are counterfeit registered trademarks. The natural person or legal person whose exclusive right to use the trademark has been infringed has the civil right to require the infringer to stop the infringement, eliminate the impact, and compensate for losses.

Types of trademark infringement

Article 52 of the Trademark Law stipulates five types of trademark infringement:

1. Without the permission of the trademark registrant, using Using a trademark that is identical or similar to its registered trademark on a certain product or similar product.

2. Selling goods that infringe the exclusive rights of registered trademarks.

3. Forgery or unauthorized manufacture of registered trademarks of others or sale of forged or unauthorized registered trademarks.

4. Without the consent of the trademark registrant, the registered trademark is changed and the goods with the changed trademark are put into the market.

5. Causing other damage to others’ exclusive rights to registered trademarks.

The above is the trademark infringement defense provided by the editor. I hope you like it!