1. Submit evidence of use to prove prior use of the trademark
In the case of trademark applications on the same day, the Trademark Office will first issue the "Trademark Registration Application on the Same Day" to the applicant involved in the same-day application. Notice of supplementary evidence of use”. Applicants are required to provide written evidence of actual use of the trademark within the specified time. The so-called evidence of actual use, according to Article 3 of the "Regulations for the Implementation of the Trademark Law", includes using the trademark on goods, commodity packaging or containers, and commodity transaction documents, or using the trademark in advertising, exhibitions, and other commercial activities. evidence. For applicants, there are several key points in providing evidence of use, namely timeliness, validity, and historical nature. Examples are given below.
Case 1: A company entrusted a trademark law firm to apply for the registration of a certain trademark, and the legal person was personally responsible for the relevant matters. After receiving the "Notice of Application for Submission of Evidence of Use on the Same Day as Trademark Registration", the trademark office immediately contacted the company to provide evidence of actual use of the trademark. Because the company's legal person was on a business trip, it was difficult to contact him, and he had no other contact information. As a result, the firm was unable to inform him of the relevant situation after many efforts. After restoring contact and communicating the situation, the company found that the notification deadline was approaching, so it could only hastily prepare relevant supporting materials and send them out, which resulted in the Trademark Office not accepting the letter.
Case 2: The English trademarks applied by Company C and Company D for a certain service category were determined to be filed on the same day during the Trademark Office’s review. Both Company C and Company D provided evidence of use in this service category, which was recognized as valid evidence by the Trademark Office. Then the focus turns to the time of trademark use of the two companies. In fact, Company C used the trademark earlier than Company D, but this was not reflected in the evidence provided. As a result, the Trademark Office cannot determine that Company C used the trademark before Company D.
2. Strive for friendly negotiation to reach consensus and clearly agree on relevant rights and responsibilities
If the evidence provided is invalid or cannot prove prior use, the Trademark Office will report to Each applicant issues a "Notice of Negotiation on Application for Trademark Registration on the Same Day", requiring each applicant to negotiate on the trademark applied for on the same day. The applicant needs to negotiate on the goods or services involved in the application on the same day, retaining one party's application and abandoning the application of the other party(s). It is worth noting that the agreement reached between applicants on simultaneous applications can be a paid agreement or a free agreement, but it must comply with relevant legal provisions and a valid agreement text must be submitted to the Trademark Office within the prescribed time limit. Here are some examples to illustrate the relevant situation.
Case 1: Company A and Company B applied for the same trademark on the same day on the 9th category (electronic computers, etc.) goods "computer disks, mice (data processing equipment), light boxes, records", neither of which provided Use evidence to enter the negotiation process. Company A reached an agreement with Company B. Company A gave up the application on the "computer disk", retained the application for other goods, and provided the agreement to the Trademark Office. In this case, "computer disk" and "mouse (data processing equipment)" belong to the 0901 similar group and are similar products. Therefore, the agreement between Company A and Company B that each retains one of two similar products is obviously inconsistent with relevant regulations. This agreement is invalid.
Case 2: Company E and Company F, both located in Changchun, applied for trademarks on the 11th category (lighting, heating equipment, etc.) products "boilers and radiators" on the same day. The main businesses of the two companies are "boilers" and "radiators" respectively, and there is no conflict. Because the two companies did not understand the relevant regulations for trademark application on the same day, they missed the time to provide evidence of actual use. Company E took the initiative to contact Company F and asked for a negotiated solution, but Company F was unable to make formal contact because the legal person of Company F was on a business trip. Until the expiration of the negotiation period, the two parties finally met to negotiate and reached a consensus, and delivered a valid contract text to the Trademark Office before the time limit. Fortunately, the negotiation was not invalidated due to the delay.
3. Prepare relevant materials and participate in the on-site lottery on time
If the negotiation fails within the specified time or a valid contract cannot be provided, the Trademark Office will issue a "Trademark Application" to all applicants. "Same-Day Application Lottery Notice" requires each applicant to bring relevant materials to the designated location at the specified time to participate in the same-day trademark application lottery.
Under normal circumstances, the Trademark Office will draw lots on the same day for each organization in the first and second half of the year. There are also cases where the number of draws is temporarily increased. After receiving the notice, the applicant must prepare all relevant materials in strict accordance with the "Notice of Lottery for Application on the Same Day as Trademark Registration" and "Instructions for Lottery for Application on the Same Day as Trademark Registration" and participate in the on-site lottery on time to determine the ownership of the trademark. Examples of relevant precautions are provided.
Case 1: Company A and Company B, both located in Shenyang, applied for a trademark in the 35th category (advertising, commercial operations, etc.) service items, and both received the "Trademark Registration on the Same Day" issued by the Trademark Office. "Notice of Application for Lottery" and "Instructions for Application for Lottery on the Same Day as Trademark Registration" require them to participate in the lottery for application on the same day at the trademark organization on a certain day. But until the end of the draw deadline, neither party showed up. The Trademark Office considered that both parties had abandoned the trademarks they applied for on the same day, and consequently rejected both parties' applications.
Case 2: A company in Hangzhou and a company in Japan applied for trademarks on goods in Category 11 (lighting, heating equipment, etc.) on the same day, and went through the application lottery process on the same day. On the same day when applying for the lottery, a company in Hangzhou entrusted a trademark agency to arrive on time and submitted relevant materials in full, while a company in Japan neither attended in person nor entrusted a trademark agency to attend. A company in Hangzhou naturally won the lottery because a Japanese company abstained.