Abstract: What is trademark right? Trademark rights refer to the exclusive and exclusive rights enjoyed by trademark owners over their trademarks and are an intangible asset of the trademark owner. What does trademark right include? Trademark rights include the trademark owner's rights to the exclusive use, prohibition, transfer, licensing and renewal of the registered trademark. Registering a trademark can help companies or individuals better protect their rights and interests, and can also provide effective evidence when encountering trademark infringement. How to handle compensation for trademark infringement? Next, let’s learn about the encyclopedia of trademark rights with the editor of 51Dongshi! What is trademark right? Explanation of trademark rights terms 1. The subject of trademark right
According to my country's "Trademark Law", the subject of trademark right can be divided into: enterprises, institutions; social groups; individual industrial and commercial persons; individuals Partnership; foreign person or foreign enterprise.
2. The object of trademark rights
The object of trademark rights is the trademark owned by the trademark owner. Only a successfully registered trademark can become the object of trademark rights.
The main characteristics of trademark rights 1. Exclusivity
The trademark registrant has the exclusive right to use its registered trademark. In commercial activities, any use without the permission of the trademark registrant will All will constitute an infringement of the exclusive right of trademark.
2. Timeliness
Trademark rights have a certain time limit. The validity period of trademark exclusive rights stipulated in my country’s Trademark Law is ten years.
3. Regionality
The protection of trademark rights is subject to geographical restrictions. Registered trademark rights generally only enjoy legal protection in the country where the trademark is registered, and non-registration countries have no obligation to protect.
4. Property
Trademark right is a kind of intangible property, which can be regarded as part of the enterprise's assets after passing the trademark value evaluation.
5. Category
When submitting the "Application for Trademark Registration", it is necessary to determine the category of the trademark and the name of the product (service) item. The scope of registered trademark protection is limited to the trademark. Approved Categories and Projects.
The difference between business name rights and trademark rights
The exclusive right to use the content of trademark rights
The exclusive right to use is the most important content of trademark rights. It is also the most basic right of trademark rights. Exclusive right to use means that the trademark owner can exclusively use the approved trademark on the approved goods and obtain other legitimate rights and interests through use.
Right of prohibition
The right of prohibition means that the registered trademark owner has the right to prohibit others from using the same or similar registered trademark on the same or similar goods or services without its permission. Similar trademarks.
Licensing rights
Licensing is a way for trademark owners to exercise their rights. It means that the registered trademark owner allows others to use its registered trademark by signing a licensing contract. rights.
Right of transfer
The right of transfer is also a way for trademark owners to exercise their rights. The owner of a registered trademark can transfer his trademark rights to others in accordance with certain conditions and in accordance with the law.
Right of renewal
Trademark renewal means that the owner of a registered trademark shall go through certain procedures in accordance with the law to extend the validity period of his registered trademark within a period of ten years before the expiration of the trademark registration. system. Because trademark rights are time-sensitive, trademark owners can extend the validity period of their registered trademarks through trademark renewal.
Trademark Law of the People's Republic of China
The term of protection of trademark rights is based on the provisions of Article 39 of the Trademark Law of the People's Republic of China. The validity period is ten years, calculated from the date of approval of registration. Before the validity period of the trademark right expires, you can apply for trademark renewal. Each renewal registration is valid for 10 years.
How to obtain trademark rights: 1. Original acquisition
Original acquisition of trademark rights means that the trademark is created by the trademark owner and is not based on someone else’s The right to exist is acquired again.
2. Successive acquisition
Successive acquisition of trademark rights means that the trademark is generated by the trademark owner based on the existing rights of others, rather than being directly acquired initially. There are two ways to acquire by inheritance, one is to transfer the trademark, and the other is to acquire the trademark right according to the inheritance procedure according to the provisions of the "Succession Law".
How much does it cost to register a trademark? 1. Online trademark registration fee standards
In order to promote the online application for trademark registration and improve the quality and efficiency of trademark registration, the online trademark registration fee standards are as follows: There is a discount of 20 yuan for paper trademark registration applications, that is, 800 yuan per item (limited to 10 products in this category. For more than 10 products, for each product exceeding 1, an additional 80 yuan will be charged for each product).
The data comes from: Development and Reform Price [2008] No. 2579.
2. Paper trademark registration fee standards
The trademark registration fee is 1,000 yuan (limited to 10 products in this category. For more than 10 products, each product will be subject to an additional charge 100 yuan), the fee for reissuing a trademark registration certificate is 1,000 yuan (including the fee for publishing a statement of loss), the fee for accepting transfer of registered trademark is 1,000 yuan, the fee for accepting trademark renewal registration is 2,000 yuan, the fee for accepting renewal registration is 500 yuan, and the fee for accepting trademark registration is 500 yuan. The review fee is 1,500 yuan, the trademark review extension fee is 500 yuan, the change fee is 500 yuan, and the trademark certification fee is 100 yuan.
The data comes from: Ji Price [1995] No. 2404.
What to do if your trademark rights are preemptively registered 1. You can file an objection against a trademark that has not been approved for registration
According to Article 33 of the Trademark Law of the People's Republic of China , a registered trademark must first be subject to a preliminary review by the Trademark Office under the State Administration for Industry and Commerce. If it passes the review, it will enter the announcement period, which lasts for three months. Enterprises can file a trademark objection with the National Trademark Office by entrusting a lawyer within these three months.
2. A registered trademark can be declared invalid
According to the 45th provision of my country’s Trademark Law of the People’s Republic of China, from the date of trademark registration Within five years (for cases registered in bad faith, well-known trademark holders are not subject to the five-year time limit), they may apply to the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce to declare the trademark invalid. In addition, if you are dissatisfied with the Trademark Review and Adjudication Board’s ruling, you may file a lawsuit with the People’s Court.
3. Apply for a comprehensive trademark in advance to avoid being registered by others
At the beginning of a business, companies should take precautions and apply for trademarks for their main products and services to avoid being registered by others. Because if a competitor preemptively registers a trademark and then continues to complain, it will have a huge impact on the company's development. Therefore, in the early stages of starting a business, you should apply for a comprehensive trademark to avoid squatting.
More trademark registration knowledge introduction:
Trademark certification application, trademark registration classification introduction, one picture to understand how to register a trademark
One picture to understand collective trademark one Picture to understand classic cases of trademark squatting for certification marks
Several ways to infringe trademark rights. According to Article 57 of the Trademark Law of the People's Republic of China, any of the following behaviors 1, are considered to infringe the exclusive rights of registered trademarks:
(1) Using the same trademark as the registered trademark on the same kind of goods without the permission of the trademark registrant.
(2) Using a trademark that is similar to the registered trademark on the same product without the permission of the trademark registrant, or using a trademark that is the same or similar to the registered trademark on similar products, which is likely to cause confusion .
(3) Selling goods that infringe the exclusive rights of registered trademarks.
(4) Forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks.
(5) Without the consent of the trademark registrant, the registered trademark is replaced and the goods with the replaced trademark are put into the market.
(6) Intentionally providing facilities for infringement of other people’s trademark exclusive rights and helping others to carry out infringement of trademark exclusive rights.
(7) Causing other damage to others’ exclusive rights to registered trademarks.
Compensation for trademark infringement is calculated according to Article 63 of the Trademark Law of the People's Republic of China:
The amount of compensation for infringement of the exclusive right to use a trademark shall be based on the right holder's The actual losses suffered by the infringement are determined.
If the actual loss is difficult to determine, it can be determined based on the benefits obtained by the infringer due to the infringement.
If the loss of the right holder or the benefit obtained by the infringer is difficult to determine, it shall be reasonably determined with reference to the multiple of the trademark license fee.
For malicious infringement of trademark exclusive rights and the circumstances are serious, the amount of compensation may be determined to be not less than one time but not more than five times the amount determined according to the above method. The amount of compensation should include the reasonable expenses paid by the right owner to stop the infringement.
What is the VAT rate for trademark rights transfer? 6.
Trademark transfer is a cultural and creative service. According to the Ministry of Finance and the State Administration of Taxation's "Notice on the Applicable Value-Added Tax Zero Rate and Exemption Policies for Taxable Services" (Caishui [2011] No. 131), the tax rate is 6.
What kind of income does the transfer of trademark rights belong to other business income?
According to the "Accounting Standards for Business Enterprises No. 14 - Revenue", other business income refers to all daily activities other than the enterprise's main business income through selling goods, providing labor services and transferring the right to use assets. the inflow of economic benefits formed. The transfer of trademark rights is a transfer of the right to use assets and brings an inflow of economic benefits to the enterprise, so it is included in other business income.
The first step in the trademark transfer process: the buyer and the seller sign a "Trademark Transfer Contract/Agreement".
Step 2: The trademark holder applies for trademark notarization and obtains the "Trademark Declaration Notarization Certificate", which is usually completed within 3-5 working days.
Step 3: Submit the prepared materials and notarial certificate to the Trademark Office, and then pay the trademark right transfer fee.
Step 4: The Trademark Office will issue the acceptance letter in about 1-2 months and start the review.
Step 5: The Trademark Office will publish an announcement about 5-8 months after accepting the application, and issue a "Certificate of Approval of Transfer of Registered Trademark" to both parties. This certificate must be used together with the original "Trademark Registration Certificate" .
Trademark right transfer fee: A transfer application requires a transfer fee of 1,000 yuan.
If a trademark agency is entrusted to handle the matter, the applicant shall pay the transfer fees and agency fees to the trademark agency. The transfer fees collected by the Trademark Office will be deducted from the advance payment of the trademark agency.
Trademark right pledge registration department. The registration authority for trademark exclusive right pledge is the State Administration for Industry and Commerce. The Trademark Office of the State Administration for Industry and Commerce handles the specific registration of pledge of exclusive trademark rights.
Things to note when registering a pledge of trademark rights: Conduct a careful and thorough investigation and evaluation of the rights status and value of the pledged trademark to avoid economic losses. The creditor and the debtor must sign a pledge contract and its subordinate main contract. The content of the contract must be complete and comply with legal regulations.
When is the renewal period for trademark rights? According to Article 40 of the Trademark Law of the People's Republic of China: If a registered trademark expires and needs to be continued to be used, the trademark registrant shall The renewal procedures must be handled in accordance with regulations within twelve months before expiration; if the renewal procedures cannot be completed during this period, a six-month extension period may be granted. Each renewal of registration is valid for ten years, starting from the day after the expiration of the previous term of validity of the trademark. If renewal procedures are not completed upon expiration, the registered trademark will be cancelled.
There is no limit on the number of trademark right renewals. The trademark owner can apply for countless trademark renewals, that is, continue to use the trademark.