1. Enterprise's trademark registration awareness and management level. There is a law in war: the most effective defense is attack. It is also appropriate to apply this sentence to enterprise trademark management. In recent 2 years, with the rapid development of economy, most enterprises have obviously improved their trademark awareness. However, while expanding the number of registered trademarks, their trademark management level and trademark protection awareness have not improved accordingly. There is a lack of theoretical research and practical discussion on how to deal with the relationship between trademarks and enterprise names, domain names, advertising and commodity names. Even some enterprises blindly pursue the number of registered trademarks, do not pay attention to the quality of registered trademarks, and lack systematic management and overall use of their registered trademarks. At the same time, the means and methods of some enterprises' anti-counterfeiting rights protection are far from meeting the needs of reality.
2. Consciousness of "borrowing light" and psychology of "hitchhiking". Conformity psychology is one of the characteristics of China's traditional psychological culture. When this psychology is applied to the field of commercial activities, it can promote producers and operators to follow good advice. On the negative side, it may produce two abnormal psychological trends, one is the consciousness of "borrowing light", the other is the psychology of "hitchhiking", which is characterized by opportunism, harming others and benefiting themselves, confusing you and me, and fishing in troubled waters; The consequence is to damage the interests and reputation of the obligee and ruin the good social customs and consumption concept.
3. Existing intellectual property registration system and system. Trademarks, patents, copyrights, drug names, trade names, domain names, etc. all belong to the objects of civil law adjustment and protection, but they belong to different intellectual property categories respectively. Their registration authorities register, register or put on record the intellectual property rights in this category according to different laws and regulations and their respective registration systems. Due to the lack of effective connection, necessary complementarity and timely relief between laws and regulations, the daily communication between registration authorities is not sufficient and timely, which lays a hidden danger for the conflict of rights and objectively provides a certain space for the infringement of criminals. Judging from the development trend of the world economy and the domestic social and economic situation, China urgently needs to formulate an Intellectual Property Law to fill the existing legal gaps and strengthen the complementarity and coordination between the existing intellectual property laws and regulations.
4. The spatial difference of the existing management system. China's existing intellectual property management departments integrate registration and management, and each competent department is responsible for daily management besides registering the areas under its jurisdiction according to its own laws and regulations. Law is the basis of management, and registration is the basis of management. However, the existing laws, regulations and registration system determine the drawbacks and shortcomings of the management system. First of all, the law enforcement efforts of various management departments are far apart, and some departments have large deviations in law enforcement angles; Secondly, the daily management of various management departments lacks the necessary connection and effective coordination mechanism; Thirdly, it focuses on "departmental law" and ignores "non-departmental law". In addition, in practice, administrative organs not only undertake tedious daily management tasks, but also deal with a large number of infringement cases. However, due to its complicated procedures, long litigation time, shortage of professionals and inadequate institutional setup, judicial organs are willing to choose administrative law enforcement organs with higher efficiency instead of judicial organs to deal with infringement cases.
5. vacuum of laws and regulations in adjacent areas. Although Hong Kong, Macao and Taiwan are adjacent to the mainland, and Hong Kong and Macao have returned to the motherland, because the SAR has independent legislative and judicial power and is not restricted by mainland laws, some infringers take advantage of the fact that domestic law enforcement agencies cannot punish companies outside the mainland, especially in Hong Kong, and carry out their infringements step by step. The first step is to register companies in Hong Kong and other places to evade mainland laws and regulations. The trade names of these companies are generally well-known registered trademarks abroad or in the Mainland. The second step is to organize some infringing participants to register a number of companies in various provinces and cities in the Mainland. The third step is for Hong Kong companies to sign agreements with these infringing participating companies in the Mainland to authorize processing or sales of products. The goods involved in these agreements generally use trademarks similar to registered trademarks or highlight the trade names of Hong Kong companies on the packaging of goods. Once these infringing enterprises and infringing goods are investigated, the infringing enterprises will use the signed agreements and power of attorney to transfer the infringement responsibilities to Hong Kong companies.
6. Trademark laws and regulations and law enforcement environment. The first problem is the deficiency of existing trademark laws and regulations. First of all, the principle of liability is not uniform. According to the theory of civil law, trademark infringement belongs to general infringement, and one of the constitutive elements of general infringement is "fault". The existing Trademark Law adopts the principle of liability without fault for the determination that producers or users infringe on the exclusive right to use trademarks of others, while the principle of liability without fault is adopted for sales behavior, that is, "knowing or should know" is a necessary condition for sales behavior to constitute infringement. According to incomplete statistics, in the current trademark infringement cases, the sale of infringing and counterfeit trademark goods is not only still in the majority, but also increasing year by year. Secondly, it is the investigation method of "ordering to seal up" for infringement, and thirdly, it is the treatment method for infringement, that is, "ordering to stop selling" and "eliminating the infringement mark on existing goods". Obviously, the internal disunity and weak strength of the above-mentioned legal provisions are far from meeting the needs of cracking down on trademark infringement and counterfeiting under the new situation, and need to be improved and revised urgently. It is reported that the legislature has also realized this problem, and in the Trademark Law (Amendment) to be adopted soon, there will be obvious changes in the legal provisions on the above issues. The second issue is the law enforcement environment. The existing laws and regulations concerning the protection of the exclusive right to use a trademark include the Trademark Law and its detailed rules for implementation, as well as the Criminal Law, the Anti-Unfair Competition Law, the Consumer Protection Law and the General Principles of the Civil Law, etc. It can be said that there are all kinds of civil, administrative and criminal laws for the protection of the exclusive right to use a trademark, and the legal protection organs include both administrative law enforcement departments and judicial law enforcement departments. Only the administrative law enforcement departments include industrial and commercial, quality supervision and customs departments. However, because trademarks are closely related to quality management, patent management, anti-unfair competition and smuggling, in the actual law enforcement process, relevant law enforcement departments need to cooperate closely and cooperate with each other to establish an effective transfer system to ensure the smooth law enforcement system of the whole society. In fact, at present, the connection between administrative law enforcement departments and judicial departments is not enough, and a fast, flexible and comprehensive coordination system has not been established between administrative law enforcement departments.
7. local interests and group interests. Society is developing in constant competition, and social interests are distributed and redistributed in the continuous development of society. With the development of economy, the distribution groups of social interests are constantly integrated, including both top-down hierarchical interests and all aspects of departmental interests. As a result, local protection and departmental protection have emerged, which not only protect the legitimate and legitimate interests of the local and departmental departments, but also may protect the illegitimate and illegal interests of the local and departmental departments. From the end of 197s to the beginning of 21st century, this phenomenon continued unabated. If there is any change, it is only from one region to another, and from one department to another. To some extent, it can be said that local protectionism and departmental protectionism are umbrellas for all kinds of illegal acts, including trademark infringement, and they are black hands that hinder healthy economic development and suppress fair competition. Tracing back to the source, the essence of local protectionism and departmental protectionism is actually egoism, that is, one-sided pursuit of personal political and economic interests, ignoring national, overall and long-term interests.
8. consumer rights awareness and trademark awareness. In the past twenty years, the brand awareness of consumers in China has been greatly improved, but for ordinary consumers, the improvement of brand awareness does not mean that the awareness of trademarks and consumers' rights has also been improved. If brand awareness is in the primary stage, then trademark awareness and right awareness are in the higher stage. The phenomenon of "buying fakes knowing the fakes" is not uncommon in reality. Supporting consumers' consumption consciousness is at least based on the following two points: First, the famous brand effect and vanity psychology, which some consumers often have. Famous brands are displayed to others, who will study the truth and falsehood; The second is "fake but not inferior". As we all know, many counterfeit and infringing products are not inferior only in terms of their quality, fake but not inferior. Although fake, they are famous and cheap, so why not? The third is the ever-changing consumer mentality. In modern society, products are changing with each passing day. In order to satisfy their ever-changing mentality, some consumers flock to low-priced goods even if they are of poor quality.
9. Improper performance in economic relations. Trademark infringement by contract or breach of contract is too numerous to mention. Here are several situations. One case: According to the provisions of the Contract Law, the contractor shall complete the work and deliver the results according to the requirements of the ordering party. However, in some licensing processing activities, some contractors sell the surplus parts or poor quality parts of the products entrusted for processing without the permission of the principal, or even sell the goods entrusted for processing to a third party without authorization. The second situation: in the process of brand-fixing processing, some consignors often use one or more layers of hands to make the contractor mark the registered trademark of others on the products entrusted for processing without the permission of the trademark registrant, and once a link is discovered, they try to cover up their illegal behavior with a layer of entrusted processing agreement; Case 3: Trademark infringement caused by licensed use. After the expiration of the license contract, the original licensee continues to use the registered trademark of the registrant on the same goods, or the licensee expands the scope of the licensed trademark or goods, or the licensee authorizes a third person to use the registered trademark without the consent of the licensor; Case 4: Trademark infringement caused by transfer. In one case, the transferee uses the registered trademark without the approval of the Trademark Office.
if your enterprise needs trademark registration and rights protection, please contact the senior trademark consultant of Enterprise Know Platform for detailed consultation.