Recently, according to media reports, the trademark dispute case between Henan Rubozhai Porcelain Co., Ltd. and Luoyang Rubozhai Ceramics Co., Ltd. Rubozhai has been successfully concluded. On June 14, 2009, Hu, the general manager of Henan Rubaozhai Porcelain Co., Ltd., applied to the State Trademark Office to register the trademark "Rubaozhai" in Ruzhou City, the place where Rubaozhai Porcelain originated. The goods were approved to be used in Class 21, that is, Porcelain, pottery, etc.
On March 28, 2013, Luoyang Rubozhai Ceramics Co., Ltd. was registered and established in Luoyang, with its business scope being ceramic products. The company opened a ceramics store in Luoyang, which mainly sold Ru porcelain. Without Hu's authorization, the word "Ru Baozhai" was used on the store's front door, brochure and website.
Between 2013 and 2015, Hu repeatedly asked the company to stop using the "Rubaozhai" trademark, but to no avail. In April 2016, Hu filed a lawsuit with the Luoyang Intermediate People's Court on the grounds that Luoyang Rubozhai Ceramics Co., Ltd. had infringed upon his trademark exclusive rights, requesting the court to order the defendant, Luoyang Rubozhai Ceramics Co., Ltd., to stop infringement in accordance with the law.
After court mediation, the plaintiff and the defendant reached an agreement. The defendant agreed to change the name of the company, and within ten days from the date of the mediation letter, the name of the door, product brochure, website, etc. Remove the word "Rubaozhai" and promise not to use "Rubaozhai" for publicity or sales in the future. At this point, the "Rubaozhai" trademark infringement dispute case that lasted for more than three years has been settled.
What actions constitute trademark infringement
Chen Bo, a lawyer at Beijing Deheheng (Zhengzhou) Law Firm, said that trademarks are used by providers of goods or services to distinguish their goods or services from those of others. Marks used to distinguish similar or similar goods or services provided by others, which have the function of identification and differentiation. Trademarks also have the function of making it easier for consumers to remember and identify them, and at the same time, they allow the company's brand and brand domain name to be promoted. Trademark infringement will not only make it difficult for consumers to distinguish between genuine and fake products, but will also damage the corporate image. So, what kind of trademark use will constitute infringement?
According to the provisions of Article 1 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over Trademarks", a trademark that is identical to or registered by others will not be used. If similar words are prominently used as an enterprise's trade name on the same or similar goods, which is likely to cause misunderstanding by the relevant public, it is an act that causes damage to the exclusive right to register a trademark of others as stipulated in the Trademark Law.
According to this, there are four elements that constitute trademark infringement: subjective intention to use someone else’s registered trademark; the word size is the same as or similar to the registered trademark; prominent use on the same or similar goods; sufficient to cause the relevant public to Misidentification. The so-called "relevant public" refers to consumers related to a certain type of goods or services identified by a trademark and other operators who are closely related to the marketing of the aforementioned goods or services.
In this case, the defendant knew clearly that "Rubaozhai" was the plaintiff's registered trademark, and used "Rubaozhai" as its own company's trade name without the plaintiff's consent, and published it on its brochures and websites. When used, the font color and size of the three characters "Rubaozhai" are not obviously different from other characters, so they are used prominently. The defendant sold Ru porcelain in its store, which objectively easily caused misunderstanding among the relevant public. Therefore, the defendant’s actions infringed upon the plaintiff’s exclusive right to register a trademark. According to the provisions of the General Principles of Civil Law and the Tort Liability Law, the defendant shall bear civil liabilities such as ceasing the infringement and compensating for losses.
How to determine the loss of trademark infringement
In addition to causing economic losses to the enterprise, trademark infringement will also have a potential impact on the enterprise's reputation, customer base, etc. Once trademark infringement occurs, how should these losses be calculated?
Article 63 of the Trademark Law stipulates: The amount of compensation for infringement of the exclusive right to use a trademark shall be based on the actual losses suffered by the right holder due to the infringement. Determine; if the actual loss is difficult to determine, it can be determined based on the benefits obtained by the infringer due to the infringement; if the loss of the right holder or the benefits obtained by the infringer is difficult to determine, it can be determined reasonably by referring to a multiple of the trademark license fee. For malicious infringement of trademark exclusive rights and the circumstances are serious, the amount of compensation may be determined to be 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 owner to stop the infringement. ?
When the right holder has tried its best to provide evidence and the account books and materials related to the infringement are mainly in the possession of the infringer, in order to determine the amount of compensation, the court may order the infringer to provide the account books related to the infringement. ,material.
If the infringer fails to provide or provides false account books or information, the court may determine the amount of compensation with reference to the rights holder's claims and the evidence provided.
According to the provisions of the Trademark Law, if it is difficult to determine 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, the court shall determine the actual losses caused by the infringement. According to the circumstances, a compensation of less than 3 million yuan will be awarded.
In order to realize its own interests to the greatest extent, the right holder may also require the infringer to compensate the reasonable expenses incurred by the right holder to stop the infringement, such as the reasonable expenses of the right holder or its entrusted agent to investigate and collect evidence for the infringement, Attorney's fees and other expenses.
In this case, because the actual losses suffered by the plaintiff due to the infringement and the benefits obtained by the defendant due to the infringement cannot be determined, the court can determine the amount of compensation based on factors such as the circumstances of the infringement, including infringement losses, investigation and evidence collection fees, Notary fees, lawyer fees, etc. Trademark infringement