How to determine that a counterfeit trademark has the following four constitutive requirements constitutes the infringement of selling counterfeit registered trademarks:
1, there must be an illegal act, that is, the actor has carried out the act of selling goods with counterfeit registered trademarks;
2, there must be damage facts, that is to say, the behavior of selling counterfeit trademark goods implemented by the actor has caused the damage consequences of the trademark owner. Selling goods with counterfeit registered trademarks of others will cause serious property losses to the obligee, and at the same time, it will also bring goodwill damage to the units enjoying registered trademarks. Property loss and goodwill damage are both damage facts.
3. The subjective fault of the actor refers to the fact that the actor already knows or should know that the goods sold are counterfeit registered trademarks.
4. There must be a causal relationship between the illegal behavior and the damage result, that is, there is a causal relationship between the illegal sales behavior and the damage result caused by the trademark owner.
What is online trademark infringement? With the development of science and technology, people's lifestyles and consumption patterns are also changing. Buying goods through the Internet has become an indispensable part of many people's daily life. At the same time, however, the phenomenon of online trademark infringement has also increased sharply, such as the infringement of trademark rights by cybersquatting, trademark infringement in online advertisements and online links. Due to the globalization, virtuality, objectivity and high-tech content of the network, the supervision of online trademark infringement becomes complicated. The lack of online trademark infringement in current laws and regulations also makes the supervision of online trademark infringement even more at a loss. Nevertheless, online trademark infringement is not unsupervised.
In the traditional sense, trademark infringement mainly refers to the use of the same or similar trademarks as others' registered trademarks on the same or similar goods (services). This kind of infringement is generally concrete and tangible, while online trademark infringement is generally abstract and virtual. Compared with the traditional trademark use, the trademark use on the Internet is only an extension of the traditional trademark use in the network field, so the online trademark infringement is also the development of the traditional trademark infringement in the network field, only changing the form and means, but following the same terms in the legal application. The difference between them lies in the invisibility of the infringing object, the uncertainty of the infringing place and the concealment of the infringing evidence. These not only change the means and methods of online trademark infringement, but also increase the frequency, which makes it difficult to determine the subject of online trademark infringement and the jurisdiction of trademark infringement cases.
What are the online trademark infringements? First, network domain names contain keywords and letters of registered trademarks of others.
The second is to maliciously register the registered trademark name of others as your own domain name. Knowing that it belongs to a well-known trademark, trade name or other logo, the actor deliberately registered it as his own domain name and then sold it to the intellectual property right holder or his competitors at a high price.
Third, use other people's well-known trademarks, shop names and commodity (service) names at will on the webpage. The actor uses the words, graphics and images of other people's registered trademarks for his own web page, or designs the graphics of other people's trademarks as the graphics of his own web page, or uses other people's well-known trademarks, font sizes and commodity (service) names as link marks at will in network links.
How to identify trademark infringement depends on the specific infringement, and rights can be protected in the following ways.
1. Complain to the industrial and commercial bureau where the case occurred or the industrial and commercial bureau at or above the county level where the obligee is located.
It is efficient to deal with trademark infringement through the administration of the industrial and commercial bureau, which can stop the infringement of the other party in a short time.
2, through the people's court.
Through the people's court, you can sue your infringed business interests and make claims.
How to identify trademark infringement There are three basic steps in the process of identifying or judging the infringement of registered trademark rights:
1, determine the scope of the exclusive right to use a registered trademark. The scope of the exclusive right to use a registered trademark is the basic basis for identifying trademark infringement.
All the factors considered in judging whether trademark infringement can be identified or claimed are all around the right scope of the exclusive right to use a registered trademark. According to Article 51 of China's Trademark Law, the exclusive right to use a registered trademark is limited to the registered trademark and the goods approved for use. ? .
Obviously, judging from this provision, the exclusive right to use a registered trademark is limited to the registered trademark and the goods approved for use by the registered trademark. The scope is determined by two factors, one is the registered trademark; The second is the goods approved for use by registered trademarks. The combination of the two constitutes the right scope of the exclusive right to use a registered trademark, and also determines the standard for comparing trademark infringement with the accused infringing object, so as to draw the conclusion whether it constitutes infringement.
2. Determine the specific object of the alleged infringement. The determination of the object of alleged infringement depends on two factors:
(1) Trademark is accused of infringement.
(2) the goods used by the trademark accused of infringement
The significance of determining the specific object of the alleged infringement lies in determining and solidifying the carrier of the alleged infringement, which lays a solid foundation for the next comparison with the scope of trademark protection. It is as important as determining the right scope of the exclusive right to use a registered trademark, and it is another comparative object to identify trademark infringement.
3. Compare the accused infringing object with the registered trademark and the goods approved for use by the registered trademark to determine whether the accused infringing trademark is the same or similar, and whether the goods used by the accused infringing trademark belong to the same category or similar to the goods approved for use by the registered trademark.
Only through the three basic steps of identifying infringement, especially comparing the accused infringing object with the registered trademark and the goods approved by the registered trademark, can we determine whether it constitutes trademark infringement.
The above is the definition of counterfeit trademark provided by Bian Xiao. I hope everyone will like it!