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Japan and China are both member states of the Paris Convention for the Protection of Industrial Property and the Madrid Agreement on the International Registration of Trademarks. According to the principle of reciprocity, Chinese enterprises or individuals enjoy national rights in Japan. treatment. However, due to differences between Japan’s trademark system and China’s, the national treatment mentioned here is only equivalent to the treatment enjoyed by Japanese companies or individuals in Japan, rather than enjoying the same protection as in China. Therefore, understanding the differences between China and Japan’s trademark systems will help Chinese companies better protect their rights in Japan.
Application for trademark registration must be based on "use"
In Japan, trademark registration must be based on use. Although there is no need to have actual use when filing an application, the trademark applied for by the applicant must have the intention or plan to be used in all designated categories of goods (services). A registered trademark cannot be used solely for the purpose of transferring or licensing others to use it. The purpose is not to make profit, but for the applicant’s own use in business. Therefore, if the examiner has doubts about this (for example, when an individual applies for a trademark in the category of comprehensive goods retail services), he can issue a notice of reasons for rejection (i.e., an examination opinion notice).
Such reasons for rejection can be resolved by submitting an affidavit or plan stating that there is a plan to use the applied trademark in the designated field, but the trademark has not been used on the designated goods (services) for more than 3 years after registration. , can cancel its registered trademark through a non-use cancellation trial, and if it is learned that the document provided is a false affidavit or plan, the applicant may be sentenced to a prison sentence of not more than 3 years and a fine of not more than 3 million yen, and the enterprise may be fined not more than 1 Fines of up to 100 million yen. Severe punishment is also one of the characteristics of Japan's trademark system.
Judgment criteria for similar trademarks
The similarity of trademarks should be judged by comparing their appearance, title (pronunciation), and meaning, as long as the degree of similarity of one of them is likely to cause confusion to the audience. If confused, the two are considered similar. Something to pay special attention to in Japan is the approximation of titles. There is no four-tone pitch change in Japanese, so it is impossible to distinguish between two names that only have different pitches. Moreover, many pronunciations that can be distinguished in Chinese, such as "an" and "ang" are considered to be the same pronunciation. In addition, Chinese cannot be distinguished in Japanese. "m" and "n", "n" and "ng", "s" and "sh", "l" and "r" in Pinyin, thus making the range of approximations wider. In addition, for trademark applications containing Chinese characters, it is not uncommon for Chinese characters with completely different pronunciations in Chinese
to have the same pronunciation in Japanese, resulting in the same title. For example, "Quanjude" and "Zen Acquisition" are pronounced in Chinese Two completely different words, pronounced exactly the same in Japanese. In addition, different meanings of the same Chinese characters in Chinese and Japanese will also bring about differences in similar judgment results. For example, "news" in Japanese means "newspaper" rather than actual facts. Since the judgment of whether a trademark is similar must be made from the perspective of the Japanese audience, it is recommended that companies consult Japanese experts in advance.
Defensive trademark system
As mentioned above, ordinary trademark registration must be premised on use within the category of designated goods (services). For famous trademarks, it is also allowed to be used on designated goods (services). Services) category to register a defensive mark without intention of use. This system is designed to exclude others from registering and using a well-known trademark in categories of goods or services that are not intended for use by the owner of the trademark. For example, if there is a famous trademark "Apple" and the trademark owner has no plans to produce and sell office supplies, it can still be registered as a defensive trademark in the office supplies category. A defensive trademark is not premised on use and will not cause consumer confusion due to use. Therefore, even if an identical or similar trademark has been registered in the same or similar goods (services) category, it will not be a refusal to register a defensive trademark. reason. On the contrary, after a defensive trademark is registered, if another person files an application for registration of the same or similar trademark within the registered category, it will be rejected because it is similar to the registered defensive trademark. In addition, once a defensive trademark is registered, it has the same exclusivity as an ordinary registered trademark. That is, if others use the same trademark within the same scope as the goods (services) designated by the defensive trademark, it will constitute infringement.
The owner of a defensive trademark is free to use the defensive trademark within the scope of registration (you can use it or not use it), and it will not be canceled due to the reason of non-use.
If a famous trademark or a similar trademark is used by others without authorization, causing confusion among consumers, the owner of the famous trademark may apply for an injunction and infringement compensation against the unauthorized use by others in accordance with the Anti-Unfair Competition Law. From this point of view, even if a defensive trademark is not registered, it can still be protected. However, anti-unfair competition litigation requires proof of all issues such as the trademark's fame, similarity, and the infringer's fault. If you are not prepared, you may not be protected. In contrast, when having a defensive trademark, the trademark owner only needs to be responsible for proving the identity of the trademark. To sum up, defensive trademarks are a powerful protective umbrella for famous trademarks, and it is very beneficial to apply for registration of defensive trademarks.
Penalty
In addition to the penalties for obtaining trademark registration through deception mentioned above, Japan has a The responsible person (individual) will be sentenced to a prison sentence of not more than 3 years or a fine of not more than 3 million yen, and the company will be fined not more than 100 million yen. If someone intentionally infringes the trademark rights of others, the responsible person (individual) will be sentenced to up to 10 years in prison and a fine of up to 10 million yen, and the enterprise will be fined up to 300 million yen. For acts such as fraud, counterfeiting of labels, and intentional infringement, Japan's penalties are very severe, and the fines for not only the responsible person but also the company that employs them are also very high.