Method 1: Direct appeal.
As mentioned in the previous report, L'Oréal's official account was quickly restored after being complained because they made a complaint. For self-media operating or publishing content on the platform, they were Direct communication with the platform after filing a trademark complaint is undoubtedly the most efficient method. So, how should I appeal?
The simplest way to appeal is to tell the platform that you do not infringe on the rights complained by the complainant. Take this complaint about "beauty products" as an example. The complainant complained on the grounds that his trademark rights for category 35 "beauty products" had been infringed. The following grounds of appeal may be considered by the complainant. The legal basis for defense grounds 1 and 2 are the first and third paragraphs of Article 59 of the Trademark Law respectively:
1. Is there a fair use case?
The WeChat official account actually operates "beauty" products. The word "beauty" directly represents the business services of selling "beauty" products provided by the WeChat official account, which is a reference to "beauty". "The fair use of the natural meaning of the two words is a fair use method stipulated in the Trademark Law. Therefore, the owner of the exclusive right to a registered trademark has no right to prohibit it.
2. Is it used before and has certain influence?
If the WeChat public account was created earlier than the date of trademark registration (the trademark involved in this case was successfully registered in
2007
, this article does not apply) , there is another reason, that is, the registration time of the WeChat official account is earlier than the trademark registration date, and the WeChat official account has gained a certain influence through operation or publicity. According to the provisions of the "Trademark Law", in this case, the registered trademark is exclusive The rights holder has no right to prohibit the WeChat public account operator from continuing to use the trademark within the original scope of use.
3. Does the method of use fall within the scope of products and services protected by the trademark?
The trademark right owned by the complainant this time is
3503 under category 35
The main scope of protection is: promotion and marketing for others Marketing these. If the WeChat official account being complained about only posts about "beauty" experiences and does not operate cosmetics itself, it should be a publishing service under Category 41 and will not fall within the scope of protection of the complainant's trademark. Or if the cosmetics brand operated by the public account is called "Beauty", it belongs to Category 3 of registered trademarks and does not fall within the scope of protection of the complainant's trademark.
In short, a complaint is to reason with the complainant through the platform. If the reasoning can be legally justified, even if the platform temporarily suspends your provision of services on the platform at the request of the complainant, the complaint will still be resolved in the end. It will recover. Of course, complainants usually make complaints to professional legal counsel or lawyers, and ordinary WeChat public account operators may not have the ability to fight their complaints. At this time, it is best to consult professionals before deciding how to respond.
Method 2: File a lawsuit in court to confirm non-infringement.
Many times, appeals to the platform will fail, and the official account will still be deleted, or the platform will not delete the official account, but it will not clearly reject the complaint, and the complainant will continue to send letters to request the platform administrator. Clearing public accounts puts public account operators in a very unsafe state. At this time, the public account operator can solve the problem through an unusual litigation method: a lawsuit to confirm non-infringement.
Specifically, it is to file a lawsuit in the court where the public account operator is located or the court where the complainant is located, and request the court to confirm that the public account does not infringe the complainant’s trademark. If the lawsuit is successful and the court determines that there is no infringement, the deleted public accounts can be restored, and the platform’s complaints without a verdict will also be dismissed. This method can be used for all platform complaints, including WeChat public account complaints. For platforms, they are very happy for both parties to go to court to resolve disputes. Therefore, if the author’s customers feel that the platform’s attitude is good when responding to complaints, If it is not good for themselves, they will resort to prosecution to alleviate the crisis. In most cases, when the platform sees the notice of the court accepting the case, it will temporarily shelve the complaint and wait for the outcome of the court's decision.