Chapter seven? Protection of the exclusive right to use a registered trademark
Article 56? The exclusive right to use a registered trademark is limited to the registered trademark and the goods approved for use.
Article 57? Any of the following acts is an infringement of the exclusive right to use a registered trademark:
(1) Using the same trademark as its registered trademark on the same commodity without the permission of the trademark registrant;
(2) Without the permission of the trademark registrant, using a trademark similar to its registered trademark on the same kind of goods, or using a trademark identical with or similar to its registered trademark on similar goods is likely to cause confusion;
(3) selling goods that infringe upon the exclusive right to use a registered trademark;
(4) Forging or unauthorized manufacturing of registered trademark marks of others or selling forged or unauthorized registered trademark marks;
(five) without the consent of the trademark registrant, the registered trademark is changed and the goods with the changed trademark are put on the market again;
(6) Deliberately facilitating the infringement of the exclusive right to use a trademark of others and helping others to commit the infringement of the exclusive right to use a trademark;
(seven) causing other damage to the exclusive right to use a registered trademark of others.
Article 58? Using another person's registered trademark or unregistered well-known trademark as the font size in the name of an enterprise, misleading the public and constituting unfair competition, shall be handled in accordance with the Law of People's Republic of China (PRC) on Anti-Unfair Competition.
Article 59? A registered trademark contains the common name, figure and model of a commodity, or directly indicates the quality, main raw materials, function, use, weight and quantity of the commodity, or contains a place name, and the exclusive right holder of a registered trademark has no right to prohibit others from using it properly.
The exclusive right holder of a registered trademark of a three-dimensional mark has no right to prohibit others from properly using the shape of the commodity itself, the shape of the commodity needed to obtain technical effects or the shape that makes the commodity have substantial value.
Before the trademark registrant applies for trademark registration, if another person has used a trademark that is the same as or similar to the registered trademark and has a certain influence before the trademark registrant, the exclusive right to use the registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use, but he may require it to attach appropriate distinctive marks.
Article 60? If one of the acts listed in Article 57 of this Law infringes on the exclusive right to use a registered trademark and causes disputes, the parties concerned shall settle them through consultation; Unwilling to negotiate or failing to negotiate, the trademark registrant or interested party may bring a lawsuit to the people's court or request the administrative department for industry and commerce to handle it.
When the administrative department for industry and commerce finds that the infringement is established, it shall be ordered to immediately stop the infringement, confiscate and destroy the infringing goods and tools mainly used to manufacture infringing goods and forge registered trademarks. If the illegal business amount is more than 50,000 yuan, a fine of less than five times the illegal business amount may be imposed; if there is no illegal business amount or the illegal business amount is less than 50,000 yuan, a fine of less than 250,000 yuan may be imposed. Whoever commits trademark infringement twice or more within five years or has other serious circumstances shall be given a heavier punishment. The administrative department for industry and commerce shall order the sale of goods that are not known to infringe the exclusive right to use a registered trademark, and can prove that the goods are legally obtained by themselves, indicating the supplier.
If there is any dispute over the amount of compensation for infringement of the exclusive right to use a trademark, the parties concerned may request the administrative department for industry and commerce for mediation, or bring a suit in a people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC). After mediation by the administrative department for industry and commerce, if both parties fail to reach an agreement or fail to perform the mediation after it takes effect, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).
Article 61? The administrative department for industry and commerce has the right to investigate and deal with violations of the exclusive right to use registered trademarks according to law; Suspected of committing a crime, it shall be promptly transferred to judicial organs for legal treatment.
Article 62? The administrative departments for industry and commerce at or above the county level may exercise the following functions and powers when investigating and dealing with acts suspected of infringing upon the exclusive right to use registered trademarks of others:
(1) Asking the parties concerned and investigating the situation related to the infringement of the exclusive right to use a registered trademark of others;
(2) consulting and copying the contracts, invoices, account books and other relevant materials related to the infringement activities of the parties;
(three) to conduct on-site inspection of the places where the parties are suspected of engaging in activities that infringe upon the exclusive right to use registered trademarks of others;
(4) Examining articles related to infringement activities; Articles that have evidence to prove that they infringe upon the exclusive right to use registered trademarks of others may be sealed up or detained.
When the administrative department for industry and commerce exercises the functions and powers prescribed in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct.
In the process of investigating trademark infringement cases, if there is a dispute over trademark ownership or the obligee brings a trademark infringement lawsuit to the people's court at the same time, the administrative department for industry and commerce may suspend the investigation of the case. After the reasons for suspension are eliminated, the investigation and handling procedures of the case shall be resumed or terminated.
Article 63? The amount of compensation for infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement; If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by referring to the multiple of the trademark license fee. For malicious infringement of the exclusive right to use a trademark, if the circumstances are serious, the amount of compensation may be determined in accordance with the amount determined by the above method. The amount of compensation shall include the reasonable expenses paid by the obligee to stop the infringement.
In order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringement if the obligee has tried his best to provide evidence and the account books and materials related to the infringement are mainly held by the infringer; If the infringer fails to provide or provide false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.
If it is difficult to determine the actual losses suffered by the obligee due to infringement, the interests gained by the infringer due to infringement, and the license fee for registered trademarks, the people's court shall award compensation of less than 5 million yuan according to the circumstances of the infringement.
In handling trademark disputes, the people's court shall, except in special circumstances, order the destruction of goods with counterfeit registered trademarks at the request of the obligee; Materials and tools mainly used for manufacturing goods with counterfeit registered trademarks shall be ordered to be destroyed free of charge; Or under special circumstances, it shall be ordered to prohibit the aforementioned materials and tools from entering the commercial channels free of charge.
Goods with counterfeit registered trademarks shall not enter commercial channels after only the counterfeit registered trademarks are removed.
Article 64? Where the exclusive right holder of a registered trademark requests compensation, and the accused infringer makes a defense on the grounds that the exclusive right holder of a registered trademark has not used the registered trademark, the people's court may require the exclusive right holder of a registered trademark to provide evidence of the actual use of the registered trademark in the past three years. If the exclusive right holder of a registered trademark cannot prove that the registered trademark has been actually used in the first three years, nor can he prove that he has suffered other losses due to infringement, the accused infringer shall not be liable for compensation.
If you sell a commodity that you don't know is an infringement of the exclusive right to use a registered trademark, and you can prove that the commodity was legally obtained by yourself and explain the supplier, you will not be liable for compensation.
Article 65? Where the trademark registrant or interested party has evidence to prove that others are committing or will commit acts that infringe upon their exclusive right to use a registered trademark. If it is not stopped in time, its legitimate rights and interests will be irretrievably damaged. Before prosecution, it may apply to the people's court in accordance with the law to take measures to order it to stop relevant acts and preserve property.
Article 66? In order to stop the infringement, in the case that the evidence may be lost or difficult to obtain later, the trademark registrant or interested party may apply to the people's court for evidence preservation according to law before prosecution.
Article 67? Without the permission of the trademark registrant, if a trademark identical to its registered trademark is used on the same commodity, which constitutes a crime, criminal responsibility shall be investigated according to law in addition to compensation for the losses of the infringed party.
Whoever, without authorization, forges or manufactures another person's registered trademark logo or sells a forged or manufactured registered trademark logo, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the law, in addition to compensating the losses of the infringed party.
Whoever knowingly sells goods with counterfeit registered trademarks, which constitutes a crime, shall be investigated for criminal responsibility according to law, in addition to compensating the losses of the infringed.
Article 68? Where a trademark agency commits one of the following acts, the administrative department for industry and commerce shall order it to make corrections within a time limit, give it a warning and impose a fine of 1 10,000 yuan or more10,000 yuan or less; Give a warning to the directly responsible person in charge and other directly responsible personnel, and impose a fine of 5000 yuan to 50000 yuan; If the case constitutes a crime, criminal responsibility shall be investigated according to law:
(1) Forging, altering or using forged or altered legal documents, seals and signatures in handling trademark affairs;
(2) soliciting trademark agency business by defaming other trademark agencies or disrupting the order of the trademark agency market by other improper means;
(3) Violating the provisions of Article 4 and Paragraph 3 and Paragraph 4 of Article 19 of this Law.
(4) Those who maliciously apply for trademark registration shall be given administrative penalties such as warning and fine depending on the circumstances; If a trademark lawsuit is filed in bad faith, the people's court shall punish it according to law.
Where a trademark agency commits any of the acts listed in the preceding paragraph, it shall be recorded in the credit file by the administrative department for industry and commerce; If the circumstances are serious, the Trademark Office and the Trademark Review and Adjudication Board may decide to stop accepting its trademark agency business and make an announcement.
If a trademark agency violates the principle of good faith and infringes on the legitimate rights and interests of its clients, it shall bear civil liability according to law, and the trademark agency industry organization shall punish it according to its articles of association.
Article 69? State functionaries engaged in trademark registration, management and reexamination must enforce the law impartially, be honest and self-disciplined, be loyal to their duties and serve in a civilized manner.
The Trademark Office, the Trademark Review and Adjudication Board and the staff of state organs engaged in trademark registration, management and evaluation shall not engage in trademark agency business or commodity production and business activities.
Article 70? The administrative department for industry and commerce shall establish and improve the internal supervision system, and supervise and inspect the implementation of laws, administrative regulations and disciplines by the staff of state organs responsible for trademark registration, management and review.
Article 71? Any functionary of a state organ engaged in trademark registration, management and review who neglects his duty, abuses his power, engages in malpractices for personal gain, illegally handles trademark registration, management and review, accepts the property of the party concerned, and seeks illegitimate interests, which constitutes a crime, shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be punished according to law.