1. Definition: A defensive trademark refers to a trademark registered by a well-known trademark owner on goods or services of different categories other than the goods (services) or similar goods (services) for which the registered trademark is approved. Several identical trademarks, in order to prevent others from registering and using the same trademark on these categories of goods or services. The original trademark is the main trademark, and the remaining trademarks are defensive trademarks.

2. Origin and defensive trademarks refer to goods or services of different categories other than the goods (services) or similar goods (services) approved for use by a well-known trademark owner. Several identical trademarks, in order to prevent others from registering and using the same trademark on these categories of goods or services. The original trademark is the main trademark, and the remaining trademarks are defensive trademarks.

The defensive trademark comes from trademark infringement in real market activities. The more common phenomenon is the phenomenon of "cloning" trademarks, which seriously affects the trademark reputation or corporate reputation of the trademark owner. Although there are corresponding legal provisions and special protection measures in China's relevant laws and regulations regarding the phenomenon of trademark "cloning", it is limited to well-known and distinctive trademarks that are "well known to the public", and For trademarks whose "famousness and distinctiveness" are not high or cannot be determined, they cannot be protected. For this reason, registered defensive trademarks have emerged to protect themselves.

3. Significance

Registration of defensive trademarks is of substantial strategic significance to companies whose trademarks are original, invest heavily in advertising, and strive to create a well-known brand image.

According to the provisions of Article 51 of my country’s Trademark Law (the second revised edition on October 27, 2001), “the exclusive right to register a trademark shall be based on the approved registered trademark and the approved goods for use. limited". Obviously, the scope of trademark exclusive rights is strictly limited and does not involve non-similar goods or services. In essence, trademark infringement is generally limited to the same or similar goods and services that compete with each other. Using a trademark that is identical or similar to another's trademark on non-competitive, non-similar goods or services generally does not constitute infringement. Therefore, in real market activities, people often take advantage of this, intentionally or unintentionally. They do not want to put in the hard work themselves, but copy or imitate other people's original trademarks at will, especially trademarks with a certain degree of popularity, using or Registering on other categories of goods or services other than those for which the trademark is approved, attempting to "free ride" on the influence of a well-known trademark brand developed through years of hard work, in order to deceive the public and obtain the benefits of unfair competition. . This phenomenon of "cloning" trademarks is relatively common in today's market activities. It is very likely to cause confusion among consumers about the origin of goods or companies, and seriously affects the trademark reputation or corporate reputation of the trademark owner.

IV. Protection Measures

Regarding the phenomenon of unfair "cloning" of this type of trademarks, my country's relevant laws and regulations such as the "Trademark Law" (October 27, 2001) Second Revised Edition) Article 13, Article 31, Article 41, Article 5(2) and Article 21(2) of the Anti-Unfair Competition Law, National Industry and Commerce Administration "Several Provisions on the Prohibition of Unfair Competition Acts of Counterfeiting the Unique Names and Decorations of Well-known Goods" promulgated by the Administration (July 6, 1995) and "Interim Provisions on the Recognition and Management of Well-known Trademarks" (August 14, 1996) As well as Article 11 of the "Opinions on Several Issues in the Administrative Enforcement of Trademarks", etc., there are corresponding legal provisions and special protection measures for this, but it is limited to those with higher visibility and distinctiveness that are "well known to the public". In addition to being a "well-known trademark" that has been recognized by the national or local industrial and commercial administration authorities, the specific characterization of its degree of "famousness and distinctiveness" shall be determined by the industrial and commercial administrative authorities based on comprehensive factors based on the actual situation of the individual case. For trademarks that are not well-known or cannot be determined, they cannot be protected.

5. Issues that should be paid attention to when registering defensive trademarks

Therefore, registering defensive trademarks is important for companies that have original trademarks, invest heavily in advertising, and strive to create a well-known brand image. , has substantial strategic significance.

my country’s Trademark Law does not provide for the registration of defensive trademarks. For trademarks that have not yet reached the level of "well-known" recognized by the industrial and commercial administration authorities, the following issues should be paid attention to when registering defensive trademarks:

1. Whether the trademark components have unique and distinctive features. Since a defensive trademark needs to be registered in multiple different categories of non-similar goods or services, if the trademark lacks unique distinctive features or has weak distinctive features, it is very likely that the same or identical trademark already exists in certain categories of goods or services. A similar trademark has been registered before and cannot be registered. Even if it is approved for registration, it is very likely that it will not be able to defend and protect the main trademark due to its own inherent deficiencies.

2. Item (4) of Article 44 of the Trademark Law stipulates that a trademark “that has ceased to be used for three consecutive years” may face cancellation. The purpose of registering defensive trademarks is not to use these trademarks immediately, but to restrict others from using certain other related categories of goods or services or to register trademarks that are identical or similar to the main trademark (the trademark being defended), which will play a certain role. It has a defensive and protective role, and at the same time it can provide a "foreshadowing" for future enterprise development. Therefore, when registering a defensive trademark, you must consider how to "use" the trademark in accordance with the provisions of Article 39, Paragraph 2 of the "Regulations for the Implementation of the Trademark Law", otherwise the meaning of its existence will be lost. In essence, the scope of “use” referred to in the Trademark Law Implementation Regulations is very broad. In fact, except for the situation where the trademark registrant no longer exists or the trademark has been abandoned, there are very few precedents for a useful trademark to be revoked by the Trademark Office of the State Administration for Industry and Commerce due to "non-use".

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