First, it has caused or is about to cause damage, that is, the infringement has caused or is about to cause damage to the trademark owner, which can be manifested as a decline in product sales, a decrease in interests or a decrease in trademark reputation.
the second is the illegality of the act, that is, the actor objectively exercises the rights enjoyed by the trademark owner according to law without permission and other legal basis.
thirdly, there is a causal relationship between the damage consequence and the illegal act, that is, the damage consequence is directly caused by the illegal act.
the fourth is subjective state, including fault and no fault. Under normal circumstances, if an actor illegally uses a trademark that is the same as or similar to a registered trademark, forges or makes the logo of another person's registered trademark without authorization, and acts of reverse counterfeiting a registered trademark, the subjective fault of the actor shall be taken as the element when determining whether there is infringement; For the act of selling goods with counterfeit registered trademarks, the subjective fault of the actor is not the key element when determining whether there is infringement.
according to the provisions of China's trademark law and related judicial interpretations, there are the following specific acts of infringement of trademark rights:
First, the act of using a trademark identical with or similar to a registered trademark on the same commodity or similar commodity without the permission of the trademark registrant, also known as infringement.
the second is the act of selling goods that infringe the exclusive right to use a registered trademark, that is, trademark infringement in the circulation field, also known as sales infringement.
thirdly, the act of forging or manufacturing others' registered trademark marks without authorization or selling forged or manufactured registered trademark marks without authorization is also called trademark mark infringement. Fourth, without the consent of the trademark registrant, the act of changing its registered trademark and putting the goods with the changed trademark into the market is called reverse counterfeiting abroad.
the fifth is an act that causes other damage to the exclusive right to use a registered trademark of others. Identification of trademark infringement;
the identification of "similar trademarks" should usually be considered from two aspects: first, whether the goods or services used by two trademarks are the same or similar; The second is whether the main parts of the logos of the two trademarks are similar. Specifically, it is determined that the general attention of ordinary consumers is the subjective standard for judging, and a comprehensive judgment is made by combining the overall comparison with the comparison of significant parts of trademarks. In practice, the three elements of a trademark, namely, sound, form and meaning, are often investigated. That is, whether the pronunciation is the same; Whether the appearance is similar or not may lead to intuitive misunderstanding by ordinary consumers; Whether the meaning is the same or not. If more than one factor is the same and may cause confusion, it can basically be identified as an approximate trademark, such as "cool kid" and "queer" involved in this case. If we make a comprehensive judgment on them, I personally think it can be identified as an approximate trademark.
The so-called "similar goods" refer to goods that are related in function, use, consumers, sales channels, etc., or have a specific connection; "Similar services" refers to services that are related or have specific connections in terms of the purpose, mode and object of services. China adopts the Nice Agreement and considers the comprehensive judgment of the use, users, functions, sales channels and sales habits of goods or services. For example, the "cool kid" and "cool kid" involved in this case are both trademarks of non-alcoholic beverages, and their uses, users, functions, sales channels and sales habits are similar.