Can an arbitration institution identify a well-known trademark?
Generally speaking, the departments that identify well-known trademarks are limited to the industrial and commercial departments in charge of trademarks, the Trademark Office, the Trademark Review and Adjudication Board and the courts. Specifically, the Arbitration Commission deals with contract disputes in which the parties have agreed in advance to settle disputes by arbitration. The trademark administrative cases examined and reviewed by the Trademark Office and the Trademark Review and Adjudication Board are all trademark authorization and confirmation cases, which have nothing to do with the arbitration institution. Trademark cases accepted by the Industrial and Commercial Bureau are infringement cases complained by the infringer and have nothing to do with arbitration institutions; There are two kinds of trademark civil cases accepted by the court. One is trademark infringement cases, in which the court can identify well-known trademarks according to the cases, which are not accepted by the arbitration commission; The other is the contract dispute related to trademark. The trademark is only the subject matter of the contract, and the case mostly involves the status of trademark rights and ownership. Although this kind of contract dispute case can be accepted by arbitration institutions, there is no basis for identifying well-known trademarks in the case itself. Another kind of trademark case accepted by the court is the administrative dispute of authorization and confirmation, which is a judgment on the case reviewed by the Trademark Review and Adjudication Board. The secret document may involve the identification of well-known trademarks, and such cases are not within the scope of acceptance by the Arbitration Commission. Therefore, the usual arbitration cases will not involve the identification of well-known trademarks. Recently, when the parties consulted this question, they thought that there was domain name dispute arbitration in addition to general civil arbitration. In this kind of arbitration, it often involved the case that the complained domain name infringed the complainant's trademark right, and it involved the fact that whether the complainant's trademark constituted a well-known trademark, so there would be the result that the arbitration institution recognized the well-known trademark. On the surface, this is the case, but in fact, this will not happen. The basic legal basis for identifying well-known trademarks is Article 13 of the Trademark Law: "A trademark applied for registration of the same or similar goods is a well-known trademark copied, imitated or translated by others, which may easily lead to confusion, so it shall not be registered and prohibited from being used. If the trademark applied for registration of different or similar goods is a well-known trademark that has been registered in China by others, misleading the public and causing the interests of the well-known trademark registrant to be damaged, it will not be registered and its use will be prohibited. " That is to say, only in cases that meet the above conditions, there are reasons for identifying well-known trademarks. Specifically, in trademark management cases, trademark offices, trademark review and adjudication boards, and trademark infringement cases, the industrial and commercial departments only make a determination whether a trademark constitutes a well-known trademark when there are similar trademarks and dissimilar commodities in the cases and cross-class protection is needed. In the case of determining whether the goods are similar, according to the judicial interpretation of the Supreme Court, the usual practice is to refer to the Classification Table of Similar Goods and Services, and if there is no evidence to the contrary, the classification table shall prevail. The basis for resolving domain name disputes is "Measures for Resolving Domain Name Disputes of China Internet Network Information Center", in which Article 8 is the criterion for determining whether the complained domain name should be cancelled, and there are three contents: (1) The complained domain name is the same as the name or logo that the complainant enjoys civil rights, or it is similar enough to cause confusion; (2) The complained domain name holder does not enjoy the legitimate rights and interests of the domain name or its main part; (3) The complained domain name holder is malicious to the registration or use of the domain name. In line with the above three contents, the arbitration institution will decide to cancel the domain name, transfer the domain name, or the complaint is not established. As can be seen from the above provisions, if trademarks are involved, the domain name dispute resolution institution mainly needs to determine whether the complained domain name is similar to the complainant's trademark logo, or enough to cause confusion, and the respondent's subjective malice. Unlike trademarks, domain names are not fixed on commodities, so it is difficult to determine the content of goods and services corresponding to their use. The key point is that arbitration institutions do not need to strictly follow the commodity classification table to judge whether commodities are similar, but the focus of similar disputes between trademarks and domain names is "enough to cause confusion", so it is not necessary to determine whether they belong to similar commodities according to the commodity classification table, so there is no so-called "cross-category protection", and naturally there is no basis for identifying well-known trademarks.