1. defense of common name to registered trademark or unregistered trademark

if the trademark is a common name of a commodity and is widely used in the region, the Trademark Review and Adjudication Board may be requested to cancel the plaintiff's trademark through trademark disputes. As a generic name that is a part of a trademark, after anyone constitutes a legitimate use of the generic name of a commodity and is applied as a registered trademark or a part of a registered trademark, the trademark owner may enjoy the exclusive right to the trademark, but may not restrict others from using the generic name of the commodity.

2. Defense of drug name to exclusive right to use a registered trademark

If a drug name is also a registered trademark, it does not constitute trademark infringement if others use the drug name on the drug without the permission of the trademark registrant, provided that the approved drug name cannot be highlighted. The reasons are as follows: First, the conflict between the drug name and the drug registered trademark is caused by the disharmony between the drug management system and the trademark registration system in China. As a party, there is no subjective fault. Second, it is unfair to allow drug names to be registered as trademarks, which will cause drug producers to monopolize the drug and is not conducive to economic development and social progress.

3. Proper use of prior enterprise names and Chinese time-honored brands

Trademarks and enterprise names belong to the category of business marks, but they belong to different legal protection and adjustment categories. It should be handled in accordance with the principles of honesty, fairness, balance of interests and protection of prior rights, whether there is confusion among consumers, and the popularity of infringed trademarks.

if the enterprise name is not prominently used, causing no market confusion, and the manufacturer and address are clearly marked, it shall not be treated as trademark infringement. Especially for the conflict of rights between a registered trademark and an enterprise name caused by historical reasons, if the parties are not malicious, they should solve the conflict fairly and reasonably based on the specific circumstances of the case and considering the historical factors and the current situation of use, and it is not appropriate to simply identify it as trademark infringement or unfair competition; For disputes over commercial signs such as time-honored brands with clear ownership, we should respect history and maintain the established legal order.

the font size, enterprise or abbreviation of enterprise name in the enterprise name that has certain market popularity and is well known to the relevant public and has actually played the role of a trade name shall be regarded as the enterprise name and protected against unfair competition. Where the use of an enterprise name constitutes an infringement of trademark rights, it may be ordered to stop using the enterprise name according to the specific circumstances of the case, or the use mode and scope of the enterprise name may be restricted. Generally speaking, the plaintiff's request to revoke or change the name of the defendant's enterprise on the grounds of trademark infringement or unfair competition, if the enterprise name has been used continuously for more than many years, it has market stability and should not be revoked generally.

4. other reasonable and proper use of registered trademarks.

as long as it conforms to the fair use stipulated in the Trademark Law, it can be used as a defense. For example, as stipulated in Article 1 of China's Trademark Law, place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks. However, unless the place name has other meaning, the registered trademark using the place name shall remain valid. This article allows the registration of trademarks with second meanings and names above the county level, such as "Red River" trademarks. However, it actually restricts some rights of trademark owners, that is, the rational use of registered trademarks as place names in other people's products. At the same time, the value of trademarks can be divided into the symbolic value of trademarks as words and logos themselves and the differential value attached by operators to establish links between trademarks and commodities and producers of commodities through business activities. The scope of the prohibition of the exclusive right to use a trademark should exclude the part of the basic symbol value of the trademark of those who properly use the trademark right.

generally speaking, the proper use of a trademark by an apologist should meet the following conditions: the apologist is subjectively good-natured, uses the goods only as descriptive use and indication, does not use them as trademarks or packaging and decoration, and will not cause confusion or misunderstanding among the relevant public. These need to be explained and proved by the defendant.

5. Sellers, ordinary OEM processors and trademark mark printers have fulfilled their reasonable duty of care.

China's Trademark Law stipulates the defense as a defendant of trademark infringement, that is, if the seller does not know that the goods infringe the exclusive right to use a registered trademark, he will not be liable for compensation. At present, the trademark infringement disputes caused by foreign trade "OEM" should reasonably determine the tort liability according to whether the processor has fulfilled the necessary duty of examination and attention.

6. The defendant is an independent brand trademark, which constitutes an approximate degree.

according to the spirit of the Supreme People's Court trial, the trademarks of independent brands did not cause market confusion. At the same time, the similarity of goods and trademarks, the salience and market popularity of registered trademarks for protection were examined in the form of technical comparison.

7. Stopping the relevant behavior will cause a major interest imbalance between the parties or run counter to the interests of the public, or it is actually impossible to implement.

according to the spirit of the Supreme People's Court's trial, if stopping the relevant behavior will lead to a significant imbalance of interests between the parties, or it is contrary to the interests of the society, or it can't be actually implemented, the interests can be weighed according to the specific circumstances of the case, and the dispute can be settled by taking more adequate compensation or economic compensation instead of deciding to stop the behavior.

How to identify trademark infringement

The identification condition of trademark infringement is that the actor has objectively committed an illegal act of trademark infringement. Infringement has caused actual losses to the infringed. Property loss or goodwill damage are damage facts. There is a causal relationship between tort and damage fact.

I hope I can help you! If you have any other questions, please contact a professional!

legal basis: article 6 of the company law of the people's Republic of China

to establish a company, an application for registration of establishment shall be filed with the company registration authority according to law. Those that meet the conditions for establishment as stipulated in this Law shall be registered as limited liability companies or joint stock limited companies respectively by the company registration authority; Those who do not meet the conditions for establishment as stipulated in this Law shall not be registered as a limited liability company or a joint stock limited company.

if it is stipulated by laws and administrative regulations that the establishment of a company must be approved, the approval procedures shall be handled according to law before the company is registered.

the public can apply to the company registration authority to inquire about the registered items of the company, and the company registration authority shall provide inquiry services.

article 7 a company established according to law shall be issued a business license by the company registration authority. The date of issuance of the business license of the company is the date of establishment of the company.

the company's business license shall specify the company's name, domicile, registered capital, business scope, legal representative's name and other matters.

in case of any change in the items recorded in the company's business license, the company shall register the change according to law, and the company registration authority shall issue a new business license.