Some experts pointed out that the homonym trademark is "legal but unreasonable" at present. There is no "merchandising right" for well-known figures or images in China, and there are conditions for the legal existence of homophonic celebrity names in trademarks: homophonic imitation of well-known names in a non-derogatory sense is related to actual goods and services. However, the overall imitation of celebrity works or images in commercial advertisements can completely constitute unfair competition, and it is hoped that it will be adjusted in civil law and legislation.
The editor-in-chief explained that the use of homophonic trademarks in the market has become an ingenious "creativity" for many businesses, such as the antidiarrheal drug "Xietingfeng" produced by a factory in Guizhou, the handwriting correction fluid of "Liude Slip" brand in schoolbags of primary and middle school students, and the down jacket of "Wang Xiaoya". Recently, it was reported that someone successfully registered the homophonic trademark "Zhang Yimo" of "Zhang Yimou" as a trademark for daily cosmetics, and planned to offer 8, yuan. Many outdoor billboards in Tianjin have appeared "pot to jar" wine. Why is the trend of homophonic trademarks getting worse? Is there any legal basis for the existence of such an alternative trademark? Information name homophonic trademark
A name homophonic trademark is an imitation of a celebrity's name and does not involve the infringement of the right to name.
The homophonic name trademark is different from ordinary word mark, which refers to the trademark that the actor uses or registers the words with the same or similar sound as his name without the authorization of public figures (celebrities). Article 99 of the General Principles of the Civil Law stipulates that citizens have the right to name, have the right to decide, use and change their names according to regulations, and prohibit others from interfering, stealing or counterfeiting. If another person uses his name as a trademark without the consent of the obligee, it constitutes infringement. However, the law does not specify whether the homonym of other people's names can be used.
the imitation object of a name homophonic trademark is the name of a celebrity. In the eyes of the creators of homophonic trademarks, homophonic trademarks are easy to remember and attract consumers; In addition, with the influence of celebrities, it is easy to generate affinity in the hearts of consumers. The Chinese patent medicine brand "Xietingfeng", which is homophonic with Nicholas Tse, has been successfully marketed and become a national brand. Taiwan Province also has homophonic trademarks such as "Cockroach loves to sip" (Zhang Aijia) and "Fei Yiqing" (Yu-Ching Fei), which are also famous for their fame and fortune. Therefore, more savvy businessmen are urged to dig their brains to come up with one "novel" trademark after another.
Comment on the legal nature: "legal and unreasonable"
A homonym trademark is "legal but unreasonable", and the legal and unreasonable situation just exposes the loopholes in the law. Obviously, the homonym trademark is an act of evading the law. According to the General Principles of the Civil Law and the Trademark Law, it can't be found that it infringes on the right to name or the exclusive right to use a trademark. However, it is obviously unfair to the victim and society if it is not regulated.
the use of homophonic trademarks should be regarded as unfair competition, because "any behavior that goes beyond the field of fair competition or violates the habit of business honesty can be named as unfair competition."
homonym trademarks use celebrity names by circumventing the law, so as to create information that can mislead consumers, which not only violates business ethics, but also infringes on the personal dignity of the imitator. In addition, the proliferation of homophonic trademarks will also lead to the confusion of market order and the difficulty of protecting trademark rights and name rights. It is contrary to the fundamental purpose of the law if it is limited to the provisions of the law and does not flexibly apply legal sanctions to evade the law.
Article 2 of China's Anti-Unfair Competition Law stipulates: "In market transactions, operators should follow the principles of voluntariness, equality, fairness, honesty and credit, and abide by recognized business ethics." This article can be regarded as a general clause. According to the spirit of this article, the use of homonym trademarks should be characterized as unfair competition.
Behind the phenomenon of homophonic trademarks linking names
misleads consumers. In business activities, there are indeed cases where one's own name or homophonic name is used as a trademark or trade name. For example, Shandong Huangming Solar Energy Group Co., Ltd. takes the homophonic name of the president Huang Ming as the trademark and the name of the enterprise; And the shampoo "Hundred Years Runfa" is embedded with Chow Yun Fat's name. As a result, consumers often think that there is some connection between homophonic trademarks and celebrities, which leads to confusion.
damage business ethics. The use of celebrity popularity is not prohibited. For example, celebrity advertising is a legal market behavior based on equivalent compensation. However, manufacturers who use homonym trademarks have achieved the goal of improving their product visibility at a small cost without the consent of celebrities. Although some consumers don't think there is any connection between the trademark and the celebrity, they will have a good impression on the goods because of their preference for the celebrity. Of course, there are also many consumers who think that it is vulgar and grandstanding to use the homonym of star names as trademarks.
disrupt the market order. If the names of celebrities have been registered and become well-known trademarks, such as "Li Ning" and "Versace", homophonic imitation of them constitutes trademark dilution. However, there are very few well-known name trademarks, and most homophonic trademarks are outside the legal regulation. It is worth mentioning that many people who create and apply for registration of homonym trademarks are not producers who use trademarks, but speculators who try to obtain the exclusive rights of homonym trademarks and change hands for profit. Although the examination and approval process of trademark registration is extremely strict and takes a long time, some registrations may eventually be rejected, but the management department will pay unnecessary examination costs for this, and it will also cause adverse social impact.
infringement of citizens' personal rights. Because public figures have more social resources than ordinary people, their words and deeds will attract social attention and affect public opinion. If its name is used improperly, the adverse effects in society will be much greater than that of ordinary people. Although in judicial practice, public figures are required to bear the "obligation to endure". However, people who create or use homophonic trademarks clearly ignore the feelings of the parties and undermine their personal dignity. If the related products are shoddy, it will also tarnish the reputation of celebrities.
the countermeasures of viewpoint governance of homonym trademarks should improve the application of the general provisions of the Anti-Unfair Competition Law. At present, it is necessary to encourage competition, but it is even more necessary to standardize competition, otherwise the proliferation of unfair competition will certainly destroy the vitality of the market economy. Although allowing law enforcement agencies to judge according to general terms may lead to mistakes in the process of behavior identification in practice, it will have greater flexibility in regulating endless unfair competition behaviors. After all, freedom of competition is the principle, and restricting competition is always the exception.
strict trademark review procedures. The laws of some countries prohibit the use of famous people as trademarks. The Canadian Trademark and Anti-Unfair Competition Law stipulates that "the name or surname of any living or dead individual who has not been more than 3 years can not be registered as a trademark", and the Russian Patent Law also prohibits the use of celebrities' real names and pen names to register trademarks, but China does not prohibit this. Relatively speaking, the application standard for registered trademarks in China is relatively low, so the examination procedure of trademarks should be strictly controlled. Article 1, paragraph 8, of the Trademark Law stipulates that signs that are harmful to socialist morality or have other adverse effects shall not be used as trademarks. This article is the embodiment of public power consciously safeguarding the interests of the public. The government not only has the obligation to maintain a fair and orderly competition order, but also has the responsibility to purify the social atmosphere.
the public should be encouraged to raise objections and claim damages. Because the object of damage of homonym trademarks is not specific, it is difficult for other operators to obtain compensation according to the anti-unfair competition law. However, the Trademark Law gives the public the right to raise objections. Only if there is no objection within three months from the date of announcement can the trademark initially approved be approved for registration, and celebrities themselves can raise objections on the grounds that their personality rights are damaged. Even if a trademark has been registered, the public may request the Trademark Review and Adjudication Board to decide to cancel the registered trademark according to Article 41. In addition, celebrities can also ask the wrongdoer to bear civil liability through litigation. If we increase the amount of damages and strengthen the protection of victims' interests, it will certainly stimulate the public's awareness of participation and form a strong joint force against unfair competition. This edition is contributed by Li Ni