The latest analysis of the third revision of the Trademark Law

1. Among the elements of trademark, the element of “voice” has been added.

“Any mark that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numbers, three-dimensional signs, color combinations and sounds, etc., as well as the above elements Any combination can be applied for registration as a trademark. ”

2. Well-known trademarks may apply for protection as well-known trademarks.

“If the holder of a trademark that is well-known to the relevant public believes that its rights have been infringed, he may apply for well-known trademark protection in accordance with the provisions of this law.”

3. Determine the industrial and commercial, court A multi-track system for identifying well-known trademarks.

“During the review of trademark registration and the investigation and handling of trademark violation cases by the industrial and commercial administrative departments, if the parties claim rights in accordance with Article 13 of this Law, the Trademark Office may, based on the needs of reviewing and handling the case,

During the handling of trademark disputes, if a party claims rights in accordance with Article 13 of this Law, the Trademark Review and Adjudication Board may determine the well-known status of a trademark based on the needs of handling the case.

During the trial of trademark civil or administrative cases, if a party claims rights in accordance with the provisions of Article 13 of this Law, the people's court designated by the Supreme People's Court may determine the well-known status of the trademark based on the needs of hearing the case. ”

4. It is prohibited to use well-known trademarks in commercial activities.

"Producers and operators shall not use the words 'well-known trademark' on goods, product packaging or containers, or in advertising, exhibitions and other commercial activities."

5. Elevate the administrative review rules that expand the interpretation of "agent and representative" in trademark squatting to legal regulations.

“The trademark applied for registration for the same kind of goods or similar goods is identical or similar to an unregistered trademark previously used by another person, and the applicant has a contract, business relationship or other relationship with the other person other than those specified in the preceding paragraph. If someone knowingly knows the existence of another person's trademark and the other person raises an objection, it will not be registered."

6. Increase the "statutory confidentiality obligations", "obligation to notify prohibited registered trademarks" and "squatting registration" of trademark agencies. "Trademarks are not subject to agency obligations" and "Obligations to prohibit applications beyond the scope"

"Trademark agencies shall follow the principle of good faith, abide by laws and administrative regulations, and handle trademark registration applications or other trademark matters as entrusted by the agent. ; Has the obligation to keep confidential the principal’s business secrets learned during the agency process.

“If the trademark applied for registration by the client may be prohibited from registration under this law, the trademark agency shall clearly inform it. Client.

“If a trademark agency knows or should know that the trademark applied for registration by the client falls under the circumstances specified in Articles 15 and 32 of this Law, it shall not accept its entrustment.

“Except for trademark registration for its agency services, a trademark agency shall not apply for registration of other trademarks. "

7. Add a new "one mark, multiple categories" trademark application process and clarify the applicable regulations for the commodity classification table.

"Trademark registration applicants should fill in and use the commodity classification table according to the regulations The product category and product name of the trademark shall be submitted for registration.

“Trademark registration applicants can apply to register the same trademark for multiple categories of goods through one application.

8. Clarify the trademark registration review period: 9 months.

“For a trademark applied for registration, the Trademark Office shall complete the review within nine months from the date of receipt of the trademark registration application documents. If it complies with the relevant provisions of this Law, a preliminary review and announcement shall be made. "

9. Failure to submit supplements and corrections to the trademark registration application will not affect the Trademark Office's review decision.

"During the review process, the Trademark Office believes that the content of the trademark registration application needs clarification or correction. Yes, the applicant may be asked to make explanations or corrections. If the applicant fails to make explanations or corrections, it will not affect the Trademark Office’s examination decision.

”

10. In the application of relative prohibition clauses, the opponent is limited to “prior rights holders and interested parties”.

“For trademarks that have been initially approved and announced, the Within three months from the date of the violation, the prior right holder or interested party believes that the violation of paragraphs 2 and 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30 and Article 3 of this Law has been violated. Article 11 and Article 32, or if anyone believes that the provisions of Articles 10, 11 and 12 of this Law are violated, he may file an objection with the Trademark Office. If there is no objection at the expiration of the announcement period, the registration will be approved, a trademark registration certificate will be issued, and the announcement will be made. ”

11. Clarify the time limit for trademark rejection review: 9 months.

“For trademarks that reject applications and will not be announced, the Trademark Office shall notify the trademark registration applicant in writing. If the trademark registration applicant is dissatisfied, he may apply to the Trademark Review and Adjudication Board for review within fifteen days from the date of receipt of the notice. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of receipt of the application and notify the applicant in writing. If there are special circumstances that require an extension, it can be extended for three months with the approval of the industrial and commercial administration department of the State Council. If the party concerned is dissatisfied with the decision of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice. "

12. Clarify the trial period for trademark objections: 12 months; the trial period for trademark opposition review: 12 months.

"If an objection is raised against a trademark that has been initially approved and announced, the Trademark Office The opponent and the opponent shall be heard to state the facts and reasons. After investigation and verification, a decision shall be made within twelve months from the expiration of the announcement period on whether to approve the registration, and the opponent and the opponent shall be notified in writing. If there are special circumstances that require an extension, it can be extended for six months with the approval of the industrial and commercial administration department of the State Council.

“If the Trademark Office makes a decision not to grant registration and the opponent is dissatisfied, he may apply to the Trademark Review and Adjudication Board for review within fifteen days from the date of receipt of the notice. The Trademark Review and Adjudication Board shall start from the date of receipt of the application. A reexamination decision shall be made within twelve months from the date of review, and the opponent and the opposed party shall be notified in writing. If there are special circumstances that require an extension, the trademark review and review board may be extended by the opposed party for six months with the approval of the industrial and commercial administration department of the State Council. If you are dissatisfied with the decision, you may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice. The People's Court shall notify the opponent to participate in the litigation as a third party.

13. Time limit for hearing of trademark dispute cases: 12. months.

“After receiving an application to declare a registered trademark invalid, the Trademark Review and Adjudication Board shall notify the relevant parties in writing and submit a defense within a time limit. The Trademark Review and Adjudication Board shall make a ruling to maintain the registered trademark or declare the registered trademark invalid within twelve months from the date of receipt of the application, and notify the parties in writing. If there are special circumstances that require an extension, it can be extended for six months with the approval of the industrial and commercial administration department of the State Council. If the party concerned is dissatisfied with the ruling of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice. The people's court shall notify the other party in the trademark adjudication procedure to participate in the litigation as a third party.

14. A registered trademark declared invalid does not have retroactive effect, except for losses caused by bad faith and unfairness.

“Decisions or rulings declaring a registered trademark invalid include judgments, rulings, and mediation documents made and executed by the People’s Court on trademark infringement cases before the invalidation was declared invalid, as well as judgments, rulings, and mediation documents made and executed by the industrial and commercial administrative departments. Decisions on trademark infringement cases and executed trademark transfer or licensing contracts shall not be retroactive. However, losses caused to others due to the bad faith of the trademark registrant shall be compensated in accordance with the preceding paragraph. It stipulates that if compensation for trademark infringement, trademark transfer fees, and trademark usage fees are not returned, which obviously violates the principle of fairness, all or part of the compensation shall be returned. "

15. Clarify the concept of "use of trademarks" and determine the scope of review for trademark infringement cases.

"The use of trademarks as mentioned in this law refers to the use of trademarks on goods. , product packaging or containers, and product transaction documents, or using trademarks in advertising, exhibitions, and other commercial activities to identify the source of the products.

”

16. The trial period of the case of withdrawal of the third party is: 9 months; the review period of the withdrawal of the third party is: 9 months.

“The registered trademark becomes the common name of the goods approved for use or has no If the trademark is not used for three consecutive years due to justifiable reasons, any unit or individual may apply to the Trademark Office to cancel the registered trademark. The Trademark Office shall make a decision within nine months from the date of receipt of the application. If there are special circumstances that require an extension, it can be extended for three months with the approval of the industrial and commercial administration department of the State Council. ”

“If the party concerned is dissatisfied with the Trademark Office’s decision to revoke or not revoke a registered trademark, he may apply to the Trademark Review and Adjudication Board for review within fifteen days from the date of receipt of the notice. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of receipt of the application and notify the parties in writing. If there are special circumstances that require an extension, it can be extended for three months with the approval of the industrial and commercial administration department of the State Council. If the party concerned is dissatisfied with the decision of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice. ”

17. Clarify the amount of fines for counterfeiting registered trademarks.

“Whoever uses an unregistered trademark as a registered trademark, or uses an unregistered trademark in violation of the provisions of Article 10 of this Law, shall be punished by The local industrial and commercial administrative department shall stop it, make corrections within a time limit, and may issue a notice. If the illegal business volume exceeds 50,000 yuan, a fine of not more than 20% of the illegal business volume may be imposed. If there is no illegal business volume or the illegal business volume is less than 50,000 yuan, a fine may be imposed. If the amount exceeds 10,000 yuan, a fine of not more than 10,000 yuan may be imposed. ”

18. Clarify the amount of fine for using a well-known trademark for commercial promotion: 100,000 yuan.

“Any violation of the provisions of paragraph 5 of Article 14 of this Law shall be punished by the local industrial and commercial administration The administrative department ordered correction and imposed a fine of 100,000 yuan. ”

19. Using trademarks as business names misleads the public and constitutes unfair competition.

“Using other people’s registered trademarks or unregistered well-known trademarks as business names , misleading the public and constituting unfair competition, shall be dealt with in accordance with the Anti-Unfair Competition Law of the People's Republic of China and the State. ”

20. Clarify the amount of industrial and commercial penalties for trademark infringement.

“When the industrial and commercial administrative department determines that the infringement is established, it shall order the infringement to be stopped immediately, and the infringing goods and products shall be confiscated and destroyed. Tools mainly used to manufacture infringing goods and counterfeit registered trademarks. If the illegal business volume exceeds 50,000 yuan, a fine of not more than five times the illegal business volume may be imposed. If there is no illegal business volume or the illegal business volume is less than 50,000 yuan, a fine of not more than 50,000 yuan may be imposed. A fine of not more than 250,000 yuan. Those who commit more than two trademark infringements within five years or have other serious circumstances shall be severely punished. If you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you legally obtained the goods and explain the supplier, the industrial and commercial administration department will order you to stop selling them.

21. The amount of compensation for trademark infringement will be increased by 3 million, and a malicious punitive compensation system will be established.

“The amount of compensation for infringement of the exclusive right to use a trademark shall be determined based on the actual losses suffered by the right holder due to the infringement; if the actual losses are difficult to determine, the amount of compensation may be determined based on the benefits obtained by the infringer due to the infringement; If the losses or benefits obtained by the infringer are difficult to determine, the amount of compensation may be determined based on a multiple of the trademark license fee. If the case is a serious infringement of the exclusive right to use the trademark, the amount of compensation may be determined between one time and three times the amount determined according to the above method. . The amount of compensation should include the reasonable expenses paid by the right holder to stop the infringement.

“The actual losses suffered by the right holder due to the infringement, the benefits obtained by the infringer due to the infringement, and the registered trademark license fee are difficult. If it is determined, the people's court shall award a compensation of not more than three million yuan based on the circumstances of the infringement. ”

22. Disclaimer clause “The claimed trademark has not been used for three years” and “Provide legal sources of sales”.

“The owner of the exclusive right to the registered trademark requested compensation, and the alleged infringer If the holder of the exclusive right to a registered trademark fails to use the registered trademark to file a defense, the People's Court may require the holder of the exclusive right to the registered trademark to provide evidence of actual use of the registered trademark within the previous three years.

If the owner of the exclusive right to a registered trademark cannot prove that the registered trademark has actually been used within the previous three years, nor can he prove that he has suffered other losses due to infringement, the alleged infringer will not be liable for compensation. ”

“If you sell goods that you do not know infringe the exclusive rights of a registered trademark, you will not be liable for compensation if you can prove that you obtained the goods legally and explain the supplier. ”

23. This decision will come into effect on May 1, 2014.