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Administrative protection of well-known trademarks

According to the provisions of Articles 5, 45 and 53 of the "Regulations on the Implementation of the Trademark Law", the administrative protection of well-known trademarks mainly There are the following four situations. Feng Xiaoqing and Hu Shaobo: "The Recognition and Protection System of China's Well-known Trademarks - Also on the "Regulations on the Recognition and Protection of Well-known Trademarks"", published in "Journal of Changsha Electric Power University (Social Science Edition)" 2004 Issue 1. :

1. The Trademark Office or the Trademark Review and Adjudication Board rejects a trademark registration application that violates Article 13 of the "Trademark Law" or cancels a trademark registration that violates Article 14 of the "Trademark Law";

2. The administrative department for industry and commerce orders the perpetrator to stop using the well-known trademark in violation of Article 13 of the Trademark Law, confiscate and destroy the trademark logo, and confiscate and destroy the trademark logo if it is difficult to separate from the goods;

3. If the owner of a well-known trademark believes that others have registered his well-known trademark as a business name, which may deceive the public or cause misunderstanding to the public, he may apply to the competent authority for business name registration to cancel the registration of the business name. The competent authority for enterprise name registration shall handle the matter in accordance with the "Enterprise Name Registration Management Regulations";

4. The industrial and commercial administrative department shall order an immediate cessation of infringement, confiscate and destroy infringing goods and those specifically used to manufacture infringing goods, and counterfeit well-known names Tools for registering trademarks and imposing fines;

From the above four situations, administrative protection can only prevent the exclusive rights of well-known trademarks from being further infringed, but it cannot protect the already infringed rights. Restoration and compensation. Although the administrative department for industry and commerce can mediate the amount of compensation for infringement of the exclusive rights of well-known trademarks at the request of the parties, since mediation requires both parties to be voluntary and has no enforcement power, administrative protection for well-known trademarks alone is not enough. See Zhang Yumin and Huang Hui: "Several Problems and Improvements in the Protection of Well-known Trademarks in my country", published in "Journal of Gansu University of Political Science and Law", Issue 8, 2003.

Contents of judicial protection of well-known trademarks

According to Articles 33, 41, 43, 53 of the Trademark Law and the new "Trademark Law" According to Articles 4 and 14 of the Provisions on Recognition and Protection, according to the application of the parties, the People's Court can protect the exclusive right to use well-known trademarks through civil litigation, administrative litigation and criminal litigation. Feng Xiaoqing and Hu Shaobo: "China's Well-known Trademarks" Recognition and Protection System of Well-known Trademarks - Also on "Regulations on Recognition and Protection of Well-known Trademarks", published in "Journal of Changsha Electric Power University (Social Science Edition)" 2004 Issue 1

1. Applicable to the "Trial of Civil Disputes over Trademarks" According to the provisions of Article 1, Item 2 of the Interpretation of Several Issues concerning the Law Applicable to Cases, Article 52, Item 5, and Article 53 of the Trademark Law, the owner of a well-known trademark may directly request the People's Court for protection through civil litigation procedures. exclusive rights to its well-known trademarks. In accordance with the provisions of Article 134, Paragraph 1, of the General Principles of the Civil Law, the People's Court shall, through a judgment, prohibit others from continuing to copy, imitate, or translate the well-known trademark registered by the owner of the well-known trademark or its main part on different or dissimilar goods. Used as a trademark, it misleads consumers and may infringe the interests of the registrant of the well-known trademark. See Sun Liyang: "New Developments in Legal Protection of Well-known Trademarks", published in "Electronic Intellectual Property", Issue 2, 2003. Moreover, according to the provisions of Article 134, Items 7, 8, 9 and 10 of the General Principles of the Civil Law, the People's Court may also require the infringer to compensate the owner of a well-known trademark through a judgment, and require the infringer to eliminate the infringement caused by the trademark. The adverse impact caused by the well-known trademark, restoring the reputation of the well-known trademark and making an apology to the owner of the well-known trademark. Judging from the above analysis, the People's Court can relatively comprehensively protect well-known trademarks through civil litigation procedures at the request of the parties.

2. Apply Article 1, Item 2, Article 33, Article 41, Item 2, and Article 40 of the "Interpretation on Several Issues Applicable Law in the Trial of Trademark Civil Dispute Cases" According to Article 3, Paragraph 5 of Article 52 and Article 53, as well as Article 4 of the new "Provisions on Recognition and Protection", the owner of a well-known trademark may request the People's Court to protect its well-known trademark through administrative litigation procedures. For registered trademarks, please refer to Deng Yongjie: "The Protection of Unregistered Well-known Trademarks by my country's New Trademark Law from the Perspective of International Law", published in "Journal of Shanghai Municipal Law Management Cadre College" Issue 1, 2002. The judgment in subparagraph (2) of this article revokes or partially revokes the decision made by the corresponding industrial and commercial administrative agency that is unfavorable to the owner of the well-known trademark and the ruling made by the Trademark Office or the Trademark Review and Adjudication Board that is unfavorable to the owner of the exclusive right to a well-known trademark, and may be based on the " Article 54(3) of the Administrative Litigation Law stipulates that the Trademark Office, the Trademark Review and Adjudication Board and the local industrial and commercial administration departments shall perform their statutory duties of protecting well-known trademarks within a certain period of time. According to the provisions of Article 61 of the "Interpretations on Several Issues in the Implementation of the Administrative Procedure Law of the People's Republic of China", the Trademark Office, the Trademark Review and Adjudication Board and the local industrial and commercial administration departments shall investigate the disputes between the owners of well-known trademarks and the corresponding infringers. If the judgment made in a civil dispute between two parties is illegal and the owner of a well-known trademark requests the People's Court to resolve the civil dispute together, the People's Court may try it together. For this concurrent case, the People's Court should be able to protect well-known trademarks by pursuing the civil liability of the infringers. This kind of litigation that is tried together may be called administrative incidental civil litigation.

3. Applying the provisions of Article 14 of the new "Provisions on Recognition and Protection", the owner of a well-known trademark may request the People's Court to apply criminal proceedings to protect its well-known trademark. See Feng Xiaoqing: "Intellectual Property Law Philosophy", China People's Public Security University Press, March 2003 Edition At present, although there are no provisions directly related to well-known trademarks in my country's "Criminal Law", it may be considered that counterfeit registered trademarks are well-known trademarks, and products sold with counterfeit registered trademarks are counterfeit well-known registered trademarks. The illegal manufacture and sale of goods with illegally manufactured registered trademarks indicating that they are well-known trademarks are respectively regarded as the crime of counterfeiting registered trademarks (Article 213 of the Criminal Law) and the crime of selling goods with counterfeit registered trademarks (Article 211 of the Criminal Law). Article 14), and the crime of illegally manufacturing and selling illegally manufactured registered trademarks (Article 215 of the Criminal Law) are (particularly) serious, so that those who infringe the exclusive right to use well-known registered trademarks will be punished. Infringers will be severely punished, thereby strengthening the protection of well-known trademarks by pursuing the criminal liability of infringers of well-known registered trademarks. According to the second paragraph of Article 16 of the new "Provisions on Recognition and Protection", the criminal liability of relevant personnel involved in well-known trademark work who have committed a crime by abusing their power, practicing favoritism and seeking improper benefits is through criminal proceedings. Another aspect of protecting well-known trademarks.

What are the trademark protection measures?

The main trademark protection measures are as follows:

(1) Negotiate and resolve.

The trademark registrant may negotiate and resolve relevant trademark matters with the other party by himself or by entrusting an agent;

(2) File a lawsuit in the People's Court.

If the trademark registrant or interested party is unwilling to negotiate or the negotiation fails, they may file a lawsuit in the People's Court; the trademark registrant or interested party has evidence to prove that others are infringing or are about to infringe the exclusive right to use the registered trademark If the behavior is not stopped in time, the legal rights and interests will be irreparably damaged, the person may apply to the People's Court to take measures to order the cessation of the relevant behavior and property preservation before filing a lawsuit. In order to stop infringement, if the evidence may be lost or difficult to obtain in the future, the trademark registrant or interested party may apply to the people's court to preserve the evidence before filing a lawsuit. If the trademark registrant or interested party is a Chinese citizen, legal person or other organization, he may sue on his own or entrust a domestic agent with trademark agency qualifications to sue; if the trademark registrant or interested party is a foreigner or foreign enterprise, he shall Entrust an organization recognized by the state with trademark agency qualifications to act as an agent (the list of state-designated agency organizations can be found on this website), or handle it according to the agreement signed by the country to which it belongs and China or the international treaty that Japan has signed, or according to the principle of reciprocity Handle;

(3) Request the industrial and commercial administrative department for handling.

The petitioner’s subject qualifications should meet the circumstances specified in item (2) above. The requester shall bear the burden of proof when making a request to the industrial and commercial administration department;

(4) Report to the public security organ.

If there is evidence that the infringer has been suspected of committing a crime, the clues that have been obtained about the suspected crime will be reported to the public security agency in the jurisdiction. For cases where the investigation by the public security department has been completed and the procuratorate has accepted and initiated a public prosecution, a criminal incidental civil lawsuit may be filed with the people's court that accepted the case.

(5) Apply to the customs for intellectual property protection filing.

If the trademark registrant and his agent discover that the goods suspected of infringement are about to enter or exit the country after applying for intellectual property protection registration with the customs, they may apply to the customs at the place where the goods enter and exit for protective measures.

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