If a trademark has been infringed, how should you protect your rights? The editor has compiled and shared with you how to protect your rights for trademark infringement. Welcome to read, for reference only! What should I do if my trademark is infringed? What about trademark infringement? Rights protection
The exclusive right to trademark is a kind of property right and is protected by law; the legitimate rights and interests of registered trademarks are also protected by the trademark management order in accordance with the law. Trademark infringement can be resolved in the following ways:
First, if there is any infringement of the exclusive right to use a trademark listed in the Trademark Law, and any dispute arises, it shall be resolved through negotiation between the parties.
Second, for trademark infringement disputes, if the parties are unwilling to negotiate or cannot reach an agreement, the trademark registrant or interested party can file a lawsuit in the People's Court or request the industrial and commercial administration department to handle it.
Third, if the lawsuit is brought to the people's court, it shall be carried out in accordance with legal procedures; if it is handled by the industrial and commercial administrative department, if the infringement is determined to be established during the handling, it shall be ordered to immediately stop the infringement and confiscate and destroy the infringement Goods and tools specifically used to manufacture infringing goods and counterfeit registered trademarks, and fines may be imposed.
Fourthly, if the party concerned is dissatisfied with the decision of the industrial and commercial administration department, he or she may file a lawsuit with the People's Court in accordance with the Administrative Litigation Law; if the infringer does not sue or perform after the expiration of the time limit, the industrial and commercial administrative department may apply to the People's Court. Enforcement.
Fifth, the industrial and commercial administrative department that handles the case can mediate the amount of compensation for infringement of trademark exclusive rights at the request of the parties. If mediation fails, the parties can file a lawsuit with the People's Court in accordance with the Civil Procedure Law. How is a trademark considered infringement?
The Trademark Law provides a legal definition of infringement of the exclusive right to use a trademark, and there are five types of violations:
(1) Without the permission of the trademark registrant , using a trademark that is identical or similar to its registered trademark on the same kind of goods or similar goods is a trademark infringement act. The same kind of goods mentioned here refers to the same goods as the goods for which the registered trademark is approved; similar goods refer to the functions, uses, raw materials, sales channels, consumer objects, producers and operators of the goods, which are easy for consumers to use. It is difficult to identify the source of goods, resulting in misidentification and mis-purchase; identical trademarks refer to trademarks that are visually indistinguishable or have very subtle differences; similar trademarks refer to trademarks that are compared as a whole and are difficult to distinguish, causing confusion among consumers. Mixed trademarks.
(2) Selling goods that infringe the exclusive rights of a registered trademark is a trademark infringement. This means that as a seller of goods, you should not sell goods that infringe the exclusive rights of a registered trademark. If you sell them, it is a trademark infringement. However, it is not an easy task for everyone who sells goods to understand the status of trademark use on thousands or tens of thousands of goods. Therefore, it is necessary to consider the actual situation and correctly understand and use this Legal requirements.
(3) It is a trademark infringement act to forge or create without authorization a registered trademark of another person or to sell a forged or unauthorized registered trademark. It should be emphasized here that a trademark is a sign that distinguishes the source of goods. Its tangible carrier is the trademark logo, and the trademark plays the role of identifying the goods through the trademark logo. Trademark identification includes trademarked packaging, labels, seals, instructions, certificates and other items. Precisely because a trademark logo is a carrier that embodies the exclusive right to use a trademark, the act of counterfeiting, creating without authorization, or selling these trademark logos registered by others is a trademark infringement.
(4) Without the consent of the trademark registrant, changing the registered trademark and putting the goods with the changed trademark back into the market is a trademark infringement. This infringement occurs because the trademark is changed without the consent of the trademark registrant in the business operation. The so-called business operation is to put the goods on the market after changing the trademark.
(5) Any act that causes other damage to the exclusive right to use a registered trademark of others is also considered trademark infringement. This item summarizes other trademark infringement behaviors that cannot be included in the above four items. This provision shows that the most basic feature of infringement of the exclusive right to use a registered trademark is to cause damage to the exclusive right to use a registered trademark. It can be said that whether Damage caused is an important indicator of infringement. How to resolve trademark infringement disputes
According to Article 39 of my country’s Trademark Law, if the exclusive right to use a registered trademark is infringed, the infringed party may request the industrial and commercial administration department at or above the county level for handling, or may directly file a complaint with the industrial and commercial administration department at or above the county level. Prosecution in the People's Court.
It can be seen that to resolve trademark infringement disputes, there are administrative channels to be handled by the industrial and commercial administration departments, and judicial channels to file lawsuits in the People's Court.
1. Administrative solution
(1) The administrative jurisdiction of trademark infringement cases can be either the industrial and commercial administration department where the infringer is located, or the industrial and commercial administration department where the infringement occurred. management department.
(2) After receiving trademark infringement cases, the industrial and commercial administration departments at or above the county level shall stop the infringement through investigation and evidence collection and on the premise of determining the facts, and make decisions based on the infringer’s illegal facts and the severity of the circumstances. Administrative penalties. Specific punishment measures include: 1. Order to stop sales immediately; 2. Invite and destroy the infringing trademark logo; 3. Eliminate the infringing trademark on the current trademark; 4. Invite molds, printing plates or other crime tools that are directly used for trademark infringement. ; 5. Order and supervise the destruction of items; 6. Depending on the circumstances, a fine of not more than 50% of the illegal business revenue or not more than five times of the profits obtained from the infringement shall be imposed, and the infringer may be ordered to compensate the infringed party for the losses.
(3) If the commercial administrative agency believes that the exclusive right to use a registered trademark has been infringed, it may exercise the following powers when investigating and collecting evidence: 1. Question the relevant parties; 2. Inspect items related to the infringing activities, and if necessary, It can be ordered to be sealed for reading; 3. Investigate behaviors related to infringement activities; 4. Review and copy contracts, account books and other business materials related to infringement activities. Choosing the industrial and commercial administrative department to handle trademark infringement cases has its own unique advantages: the personnel handling the case are familiar with the business, the handling procedures are simple, and the case is concluded quickly, thus saving time and effort. However, its obvious shortcoming is that the administrative decision has no final effect. If the parties are dissatisfied with the handling of the industrial and commercial administrative organs, they can still file a lawsuit in the People's Court.
2. Litigation resolution methods
(1) Jurisdiction. Trademark infringement cases may be under the jurisdiction of the People's Court of the place where the infringement occurred or where the infringer is located. In this regard, the infringed party can freely choose the place where the infringement occurred or the people's court where the infringer is located to file a lawsuit. At the same time, due to the complexity of trademark infringement cases, the Supreme People's Court currently designates the Intermediate People's Court to have jurisdiction.
(2) The People’s Court generally adopts civil sanctions in handling trademark infringement cases. Based on the infringed party's right to claim for prohibition, claim for loss compensation, claim for return of unjust benefits, and claim for restoration of reputation, the people's court may adopt the following methods individually or in combination: 1. Order the infringer to immediately stop the infringement. You can destroy the items that constitute the infringement, dismantle the equipment used in the infringement, and invite tools, templates, etc. that are directly used for the infringement; 2. Eliminate the impact and restore the credibility of the infringed party, such as ordering the infringed party to publish in newspapers and magazines Publish an apology statement, etc., to restore the business reputation of the infringed party; 3. Compensate the losses of the infringed party. The amount of compensation is calculated as the profits gained by the infringer due to the infringement during the infringement period or the infringed party's losses due to the infringement during the infringement period. Losses suffered due to infringement. In addition, the infringer should also compensate the infringer for the expenses incurred by the infringed party in investigating, collecting evidence, and hiring a litigation or non-litigation agent; 4. In addition to the above main methods, the people's court can also take admonishment, ordering a statement of repentance, Measures such as confiscation of illegal gains, fines or detention.
(3) Civil litigation procedures are applicable to litigation settlement of trademark infringement cases.
Prosecution. The person whose trademark has been infringed must file a lawsuit with the People's Court in accordance with the law before launching a lawsuit. When suing a trademark infringer, you must pay attention to:
Submit a lawsuit to the People's Court, and submit copies according to the number of defendants; the lawsuit must have a clear defendant, that is, the trademark infringer, and have specific prosecution requirements, such as a request to stop Infringement, and requesting a certain amount of compensation, with facts and reasons, that is, when filing a lawsuit, relevant certification documents for registered trademarks and evidence materials proving the infringement of the infringement should be attached; the lawsuit must fall within the scope of the People's Court and the People's Court that is the subject of the lawsuit Management, and within the scope of the law, choose the most favorable court to sue; the lawsuit must be filed within the statute of limitations stipulated by law, that is, 2 years from the date the trademark owner knows or should know that the exclusive right of the trademark has been infringed by others. File a lawsuit within. In addition, trademark infringement cases are relatively complex, and the parties may entrust 1 to 2 agents to participate in the litigation. Choosing someone from a trademark agency or a lawyer who is proficient in trademark law as your litigation agent is very important to effectively protect the legitimate rights and interests of the parties.
Trial. The people's court shall file a case and accept a lawsuit that meets the legal requirements after review. When hearing a trademark infringement case, it must be conducted in accordance with legal procedures.
Through the trial of trademark infringement cases, the People's Court ascertains the facts of the case, distinguishes right from wrong, and clarifies responsibilities. On this basis, it makes a judgment on the focus of the dispute between the two parties, namely whether it constitutes infringement, whether compensation should be paid, and the amount of compensation.
Property preservation. Property preservation is a very important issue in trademark infringement litigation. Taking preservation measures correctly and in accordance with the law is of great significance to safeguarding the legitimate rights and interests of the infringed party. Therefore, property preservation is often used in trademark infringement lawsuits. Property preservation means that in order to promptly and effectively protect the legitimate rights and interests of closely related persons or parties, the People's Court shall, before litigation or making a judgment, upon the application of closely related persons or parties, or on its own initiative and in accordance with its authority, take measures to restrict the disposal or disposal of relevant property. Mandatory measures for transfer. Property preservation includes litigation property preservation and pre-litigation property preservation, which are applicable to different legal situations.
The applicable conditions for the preservation of litigation property are: 1. The case has been accepted by the court, but a judgment has not yet been made; 2. The case has specific content of payment, which may be used due to the behavior of one of the parties or other reasons. If the judgment cannot be enforced or is difficult to enforce in the future, for example, the infringer transfers, conceals, destroys or sells the relevant items without authorization; 3. The applicant provides a guarantee (if the people's court makes a property preservation ruling ex officio, the party does not need to provide a guarantee).
The applicable conditions for pre-litigation property preservation are: 1. During the pre-litigation period, there is an emergency situation, and failure to take immediate preservation measures will cause irreparable losses to the applicant’s interests; 2. The applicant must If a person files an application, the people's court cannot take the initiative to make a preservation ruling ex officio; 3. The applicant must provide a guarantee; 4. The applicant must file a lawsuit within 15 days after the court takes preservation measures, otherwise the court will terminate the pre-litigation property preservation in accordance with the law.
There are certain scope restrictions for applicants to apply for property preservation. The scope of the request must be property directly related to the financial affairs of the case or the substantive rights requested by the applicant to be protected, and cannot involve the personal rights of the respondent or the property and personal rights of persons other than the respondent. In trademark infringement cases, the scope of application for preservation includes the infringer’s funds, the manufacturing, storage, and transportation of the infringing products, machinery, equipment, tools, and the infringing products themselves. Property preservation can take the form of sealing, detaining, freezing, etc.
The party concerned shall apply for property preservation in strict accordance with the law. If an application error causes losses to the respondent, the applicant shall be responsible for compensation.
Execute. Enforcement is the final stage of the litigation process and is also an important way for the rights and interests of the parties who win the lawsuit to be realized. According to the provisions of the Trademark Law, if the party concerned is dissatisfied with the decision of the industrial and commercial administration department to impose a fine, he may file a lawsuit with the People's Court within fifteen days of receiving the notice; if he deceives and fails to prosecute and perform, the relevant industrial and commercial administrative department shall apply to the People's Court for deception. Court enforced. If the people's court finds that there is indeed an error in the decision, it will not execute the decision with the approval of the president and notify the administrative agency; if there is no error, it will enforce the decision and the party concerned will pay a fine. If the parties do not voluntarily pay the fine, the people's court may issue a notice, forcibly transfer the fine from the bank, or adopt enforcement measures such as seizure and auction. Compensation fees for trademark infringement are also enforceable.
The above is how the editor provides you with how to protect your rights against trademark infringement. I hope you will like it!