Legal subjectivity:

I believe everyone will be familiar with trademarks. Trademarks are a type of intellectual property. With the continuous emergence of domestic copycat products, my country's protection of trademarks is also increasing.

1. Article 31 of the Trademark Law stipulates:

Application for trademark registration shall not damage the existing prior rights of others, nor shall it be used to preemptively register trademarks already used and used by others by unfair means. A trademark with certain influence.

2. Interpretation of Article 31 of the Trademark Law:

1. Application for trademark registration shall not damage the existing prior rights of others. "Others' existing prior rights" refer to the rights that others have acquired before the trademark registration applicant files a trademark registration application, such as design patent rights, copyrights, business name rights, etc. Trademark rights can easily conflict with these rights, so this article stipulates that applying for trademark registration should not damage the existing prior rights of others, that is, you should not apply for registration as a trademark for designs that others have already obtained rights for.

2. When applying for trademark registration, you must not use unfair means to register a trademark that is already used by others and has a certain influence. This provision is an addition to the current revision of the Trademark Law. It is mainly aimed at the behavior of preemptively registering trademarks that have been used by others and have certain influence in society.

Squatting in registering other people’s trademarks means preemptively applying for registration in one’s own name of a trademark that has been used by others and has had a certain influence among consumers but has not yet been registered. This behavior violates the principle of good faith in the General Principles of Civil Law, is a malicious behavior, disrupts the social and economic order, and should be stopped. For this reason, this article has been added to the Trademark Law in this revision. First, this article stipulates that "unfair means shall not be used to preemptively register a trademark that has been used by others beforehand", that is, preemptive registration is a malicious act. Second, this provision does not cover all previously used trademarks, only "trademarks with certain influence", that is, no preemptive registration of trademarks that have been used by others and has certain influence is allowed. The content of this article should be understood in conjunction with the provisions of Paragraph 2 of Article 41 and Article 29 of this Law. Paragraph 2 of Article 41 of this Law stipulates that the prior user of a trademark has the right to apply for cancellation of preemptive registration, that is, the prior user may request the Trademark Review and Adjudication Board to rule on canceling the registered trademark. However, there are restrictions on the exercise of this right to apply for cancellation, and it must be within five years of registration of the trademark. After the legal period of five years, the prior user loses this right. This means that the prior user no longer has the right to apply for cancellation of a trademark that was registered due to an earlier application. This point reflects the first-to-file principle stipulated in Article 29 of this Law. According to the first-to-file principle, if you want to register a trademark, you should submit a registration application to the Trademark Office as soon as possible. At the same time, you should apply for registration of your own original trademark, rather than registering in your own name an unregistered trademark that has been used by others and has a certain influence. The act of applying for trademark registration should also comply with the principles of good faith and good faith in the General Principles of Civil Law. Therefore, the provisions of this article are requirements for trademark registration applications from the perspective of not violating the principle of good faith. At the same time, the provisions of Paragraph 2 of Article 41 of this Law are requirements for trademark registration applications from the perspective that the prior user can exercise the right to apply for cancellation against malicious registration behavior. These are two sides of the same issue, both supplementary to the first-to-file principle. The law is objective:

Article 11 The following signs shall not be registered as trademarks: (1) only the common name, graphics, and model of the product; (2) only directly indicating the quality, main raw materials, and Function, purpose, weight, quantity and other characteristics; (3) Lack of distinctive features. If the signs listed in the preceding paragraph acquire distinctive features through use and are easy to identify, they may be registered as trademarks. Interpretation This article is a provision on prohibited signs for registered trademarks. 1. According to Article 9 of this Law, the trademark applied for registration shall have distinctive features and be easy to identify. Recognizability is the basic characteristic of a trademark. Producers and operators use trademarks to promote their own goods and services, and consumers use trademarks to distinguish the goods and services of different producers and operators. If a trademark does not have distinctive features, it will not be able to fulfill the function of a trademark, and it will not be a trademark.

2. Paragraph 1 of this article stipulates that any mark that only has the common name, graphics, model of the product, or that only directly represents the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the product and lacks distinctive features shall not be used as a mark. Trademark registration. Its purpose is to ensure the recognizability of the trademark. Because the marks listed in this article are registered as trademarks, they lack distinctiveness and cannot distinguish the goods and services of different producers and operators. For example, "teapot" is a common name for a tea set. If it is used as a trademark, it lacks distinctiveness. Consumers cannot tell which company produces the "teapot" through this trademark. In addition, if the signs listed in this article are allowed to be registered as trademarks and used exclusively, it will be unfair to other producers and operators of similar goods. 3. There are two ways to obtain the distinctiveness of a trademark: one is to make the trademark distinctive through the careful design of the trademark components; the other is to make the trademark distinctive through use and gain public recognition. In practice, there are indeed some trademarks that were originally non-distinctive and have become distinctive after use, such as "Liangmianzhen" toothpaste, "Sanqi" Diedai Pills, etc. It is a common international practice to grant registration protection to trademarks that have acquired distinctiveness through use. Article 15, Paragraph 1, of the Agreement on Trade-Related Aspects of Intellectual Property Rights stipulates that even if some marks cannot originally distinguish the relevant goods or services, members can confirm whether they can be registered based on the identification they have acquired through use. This provision indicates that a mark that is not distinctive but has acquired distinctiveness through use can be registered as a trademark. According to common international practices and combined with my country's practice, paragraph 2 of this article stipulates that signs listed in the previous paragraph that have acquired distinctive features through use and are easy to identify may be registered as trademarks. This provision not only clarifies that signs cannot be registered as trademarks, but also makes up for the past shortcomings of being distinctive through use and not being protected by registration. It will have a positive impact on strengthening my country's trademark registration management, maintaining fair competition, and encouraging enterprises to create famous brands. promotion effect.