Compared with trademark rights, copyrights have priority. If the copyright owner believes that the trademark owner's registered trademark comes directly or indirectly from his or her work without his permission, the copyright owner can request the trademark owner to stop using the trademark; at the same time, if the trademark owner's registration is legal, the trademark owner The right holder can continue to use the trademark before the trademark authority cancels its registered trademark. In this way, conflicts between copyright and trademark rights are inevitable.
The "Trademark Law" and "Trademark Law Implementing Rules" clearly stipulate the protection of legitimate prior rights. If a trademark registration is obtained by infringing on the legitimate prior rights of others, including copyright, the trademark authority should cancel the registered trademark. , but the Copyright Law does not have corresponding provisions. It is very necessary to properly resolve the conflict between the two in legislation and practice. Currently, there are many examples of conflicts between copyright and trademark rights. Generally speaking, while protecting prior copyrights, attention should be paid to protecting the legitimate rights of trademark registrants. Specific handling methods can be gradually explored in practice and standardized in legislation.
Relevant regulations are based on the "Trademark Law":
Article 31: Application for trademark registration shall not damage the existing prior rights of others, nor shall it be used to preemptively register others' existing rights by unfair means. Trademarks that are used and have certain influence.
Article 41 If a registered trademark violates the provisions of Articles 10, 11, and 12 of this Law, or is registered by deception or other unfair means, The Trademark Office shall cancel the registered trademark; other units or individuals may request the Trademark Review and Adjudication Board to rule on canceling the registered trademark.
If a registered trademark violates the provisions of Articles 13, 15, 16 and 31 of this Law, within five years from the date of trademark registration, the trademark owner shall Or an interested party may request the Trademark Review and Adjudication Board to rule on revoking the registered trademark. For cases registered in bad faith, the owner of a well-known trademark is not subject to the five-year time limit.
Except for the circumstances specified in the preceding two paragraphs, if there is a dispute over a registered trademark, you may apply to the Trademark Review and Adjudication Board for a ruling within five years from the date of approval of registration of the trademark.
After receiving the ruling application, the Trademark Review and Adjudication Board shall notify the relevant parties and submit a defense within a time limit.
"Copyright Law":
Article 21: Citizens' works, their right to publish, Article 10, Paragraph 1, Items (5) to (10) of this Law The protection period of the rights stipulated in item 7) is the life of the author and fifty years after the death of the author, ending on December 31 of the fiftieth year after the death of the author; in the case of a collaborative work, the period of protection shall end on the fifth day after the death of the last author. December 31st of the tenth year.
Works and copyrights (excluding the right of authorship) of legal persons or other organizations are enjoyed by legal persons or other organizations. The protection period of the rights stipulated in Item 17) is fifty years, ending on December 31, the fiftieth year after the work was first published. However, if the work has not been published within fifty years after its creation, this law will no longer protect it.
The rights to publish cinematographic works, works created using methods similar to filmmaking, and photographic works, and the rights stipulated in Items (5) to (17) of Article 10, Paragraph 1, of this Law The protection period is fifty years, ending on December 31, the fiftieth year after the work was first published. However, if the work has not been published within fifty years from the completion of its creation, this law will no longer protect it.
It will also be protected in 178 countries around the world according to the Niger Convention.
Benefits of registering copyright:
Copyright registration fees are low and the protection period is long. The protection period of personal copyright registration is 50 years after death, and the protection period of corporate copyright registration is 50 years after publication. .
After all, trademarks have limitations on the scope of products they can be used on. If others use your graphics on different products, it does not constitute an infringement of your trademark rights. If the graphics have copyright, they can be protected even if they are used on different products. Protect. Copyright registration is equivalent to a small class of trademarks, restricting others from using this pattern to register trademarks, and preparing for future business growth and brand building.
The scope of copyright registration protection is also extremely broad. According to the Niger Convention, it will be protected in 178 countries around the world.
Case: The famous cartoonist Mr. Zhang Leping created a "Sanmao" image with a big head, a round nose and only three hairs on his head during his long creative career, for which Zhang Leping owns the copyright.
The defendant Jiangsu Sanmao Group Company has widely used the image of "Sanmao" on its products, advertisements, and corporate logos without permission. In addition, between November 1995 and February 1996, the defendant filed trademark applications containing the "San Mao" cartoon image with the State Trademark Office for 34 categories of goods. By the time of the incident, it had been approved for category 31. After a trial, the court found that the defendant's use of the "Sanmao" cartoon image in commercial marks without permission infringed on the prior rights of others - copyright. Subsequently, the State Trademark Office canceled the "Sanmao" trademark registered by the defendant on 31 categories of goods due to "improper registration."