At the request of the parties, the Trademark Office and the Trademark Review and Adjudication Board will determine whether the trademark constitutes a well-known trademark on the basis of ascertaining the facts and in accordance with Article 14 of the Trademark Law.
1. Introduction
The above provisions reflect the protection of well-known trademarks, that is, from the perspective of protecting the interests of well-known trademark owners and safeguarding fair competition and consumer rights, Trademark registrations that may increase the popularity and reputation of a well-known trademark, cause market confusion or public misunderstanding, and may harm the interests of the well-known trademark owner shall be prohibited to make up for the shortcomings of strict implementation of registration principles that may cause unfair consequences.
In the trial of trademark opposition, opposition review and dispute cases, if issues involving copying, imitating or translating other people’s well-known trademarks will be determined on an individual basis based on the principles of this standard.
2. Application requirements
2.1 The application of Article 13, Paragraph 1 of the Trademark Law must meet the following requirements:
(1) Other people’s trademarks are in the system The disputed trademark has been well-known before the application date but has not yet been registered in China;
(2) The disputed trademark constitutes a copy, imitation or translation of someone else’s well-known trademark;
(3) The disputed trademark The goods/services used are identical or similar to the goods/services used by others' well-known trademarks;
(4) The registration or use of the disputed trademark may easily lead to confusion.
2.2 The application of Paragraph 2 of Article 13 of the Trademark Law must meet the following requirements:
(1) Others’ trademarks are well-known and registered in China before the disputed trademark application date ;
(2) The disputed trademark constitutes a copy, imitation or translation of someone else’s well-known trademark;
(3) The goods/services used in the disputed trademark are the same as those associated with someone else’s well-known trademark. The goods/services used are not identical or similar;
(4) The registration or use of the disputed trademark misleads the public, causing the interests of the well-known trademark registrant to be harmed.
3. Determination of well-known trademarks
3.1 Well-known trademarks refer to trademarks that are widely known to the relevant public in China and enjoy a high reputation.
Relevant public includes but is not limited to the following situations:
(1) Producers or service providers of the goods identified by the trademark;
( 2) Consumers of the goods/services identified by the trademark;
(3) Operators and relevant personnel involved in the distribution channels of the goods/services identified by the trademark.
3.2 To determine whether another person’s trademark constitutes a well-known trademark, the following factors should be considered comprehensively based on the circumstances of the case, but it is not assumed that the trademark must meet all of the following factors:
(1) The degree of awareness of the trademark by the relevant public;
(2) The duration of use of the trademark;
(3) The duration, extent and geographical scope of any publicity work for the trademark ;
(4) Records that the trademark is protected as a well-known trademark;
(5) Registration status of the trademark;
(6) The trademark is well-known of other factors.
3.3 The above-mentioned reference factors for identifying well-known trademarks can be proved by the following evidence materials:
(1) Contracts, invoices, bills of lading, and bank transactions for the goods/services used by the trademark. Bills, import and export certificates, etc.;
(2) Relevant information on the sales area, distribution of sales outlets, sales channels and methods of the goods/services used by the trademark;
(3) Radio, film, television, newspapers, periodicals, Internet, outdoor and other media advertisements, media reviews and other promotional materials involving the trademark;
(4) Goods/services used by the trademark Relevant information on exhibitions and expositions participated in;
(5) Relevant information on the earliest use time and continued use of the trademark;
(6) The trademark’s popularity in China and abroad and registration certificates from relevant regions;
(7) Relevant documents indicating that the trademark administrative authority or judicial authority has recognized the trademark as a well-known trademark and granted protection, as well as the circumstances in which the trademark has been infringed or counterfeited;
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(8) The evaluation report on the intangible assets value of the trademark issued by a qualified evaluation agency;
(9) The information related to the trademark published or issued by a credible authority or industry association Statistics of sales, profits and taxes, output value of the goods/services used, their rankings, advertising statistics, etc.;
(10) Award-winning status of the trademark;
(11) Others Information that can prove the popularity of the trademark.
The above evidence is in principle limited to evidence before the application date of the disputed trademark.
3.4 The evidence materials provided to prove that a trademark is well-known are not limited to China, but the foreign evidence materials submitted by the parties should be able to prove that the trademark is known to the relevant public in China.
The recognition of a well-known trademark does not presuppose that the trademark is registered or applied for registration in China or that the goods/services used by the trademark are actually produced, sold or provided in China. The publicity activities are also the use of the trademark, and the relevant information can be used as evidence to judge whether the trademark is well-known.
Evidence materials used to prove the time and circumstances of continuous use of a trademark should be able to show the trademark logo used, goods/services, date of use and user.
3.5 When hearing a case involving a well-known trademark that has been recognized by the trademark administrative authority or judicial authority, if the other party has no objection to the well-known trademark, it can be recognized. If the other party has objections to the well-known trademark, it shall re-examine the well-known trademark materials and make a determination in accordance with Article 14 of the Trademark Law.
4. Determination of copying, imitating or translating other people’s well-known trademarks
4.1 Copying means that the disputed trademark is identical to other people’s well-known trademarks.
4.2 Imitation means that the disputed trademark plagiarizes other people’s well-known trademarks and inherits the significant parts or distinctive features of other people’s well-known trademarks.
The salient part or distinctive feature of a well-known trademark refers to the part or feature on which a well-known trademark plays an important role in identification, including specific words or their combinations and font expressions, and specific graphic composition and expressions. form, specific color combinations, etc.
4.3 Translation means that the disputed trademark expresses someone else’s well-known trademark in different languages, and the language has established a corresponding relationship with someone else’s well-known trademark, and is widely known or habitually used by the relevant public.
5. Determination of the possibility of confusion and misleading
5.1. Confusion and misleading refer to the misunderstanding of the source of goods/services. Confusion and misleading include the following situations:
(1) Consumers misunderstand the source of the goods/services and believe that the goods/services marked with the disputed trademark are produced or provided by the owner of the well-known trademark;
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(2) It reminds consumers that the producer or service provider of the goods marked with the disputed trademark has some kind of relationship with the owner of the well-known trademark, such as an investment relationship, a licensing relationship or a cooperative relationship.
5.2 The determination of confusion or misleading does not require the actual occurrence of confusion or misleading, but only the possibility of confusion or misleading.
5.3 To determine the likelihood of confusion or misleading, the following factors should be comprehensively considered:
(1) The degree of similarity between the disputed trademark and the cited trademark;
(2) The originality of the cited trademark;
(3) The popularity of the cited trademark;
(4) The degree of connection between the disputed trademark and the cited trademark’s respective goods/services ;
(5) Other factors that may cause confusion or misleading.
6. Determination of the scope of protection of well-known trademarks
6.1 For well-known trademarks not registered in China, according to the provisions of Article 13, Paragraph 1 of the Trademark Law, the scope of protection extends to Identical or similar goods/services.
6.2 For well-known trademarks that have been registered in China, according to the provisions of Article 13, Paragraph 2 of the Trademark Law, the scope of protection extends to goods/services that are not identical or similar.
Expanding the scope of protection of a registered well-known trademark on goods/services that are not identical or similar should be based on the premise that there is a possibility of confusion or misleading. The specific scope of protection in individual cases should be determined by comprehensively considering the factors listed in 5.3 of this standard.
7. Determination of interested parties
According to the provisions of Paragraph 2 of Article 41 of the Trademark Law, in addition to the owner of a well-known trademark, interested parties can also apply for trademark The review committee ruled to cancel the registered trademark. The following entities are interested parties:
(1) Licensees of well-known trademarks;
(2) Other entities with evidence proving their interest in the case.
Whether a person is an interested party shall be determined at the time when the review application is submitted. However, those who already have an interest during the trial of the case shall also be recognized as interested parties.
8. Determination of malicious registration
If you copy, imitate or translate someone else’s well-known trademark and apply for registration, within five years from the date of registration of the trademark, the owner or interested party of the well-known trademark shall You can request the Trademark Review and Adjudication Board to cancel the disputed trademark, but if it is registered in bad faith, the owner of a well-known trademark may request to cancel the disputed trademark without a five-year time limit.
To determine whether the applicant for the disputed trademark has bad faith, the following factors may be considered:
(1) The applicant for the disputed trademark has had trade or cooperative relations with the owner of the well-known trademark;
(2) The applicant for the disputed trademark and the owner of the well-known trademark are located in the same region or the goods/services of both parties have the same sales channels and geographical scope;
(3) If the applicant for the disputed trademark and the owner of the well-known trademark have had other disputes, they can know the well-known trademark;
(4) The applicant for the disputed trademark and the owner of the well-known trademark have had internal contacts;
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(5) After registration, the applicant for the disputed trademark has the purpose of seeking improper benefits, using the reputation and influence of the well-known trademark to conduct misleading publicity, coercing the owner of the well-known trademark to cooperate with it in trade, and threatening the owner of the well-known trademark Or others demand high transfer fees, licensing fees or infringement compensation;
(6) Well-known trademarks have strong originality;
(7) Others can be identified as Malicious circumstances.
2. Unauthorized registration of an agent or represented person
Trademark trial standards
Article 15 of the Trademark Law Without authorization, the agent or The representative shall register the trademark of the principal or represented person in his own name. If the principal or represented person raises an objection, the registration shall not be granted and the use shall be prohibited.
1. Introduction
The act of an agent or representative registering the principal or represented person’s trademark without authorization violates the principle of good faith and infringes upon the principal, The legitimate rights and interests of the represented person or interested party, the above provisions are intended to prohibit the malicious preemptive behavior of agents or representatives.
In the trial of trademark opposition, opposition review and dispute cases, if an agent or representative is involved in the unauthorized registration of a principal or represented person's trademark, case-by-case determination will be based on the principles of this standard.
2. Applicable requirements
To determine that an agent or representative registers a principal or representative’s trademark without authorization, the following conditions must be met:
(1) The applicant for registration of the disputed trademark is the agent or representative of the trademark owner, but if there is a situation specified in paragraph 2 of Part 5 of this standard, the provisions shall apply;
( 2) The disputed trademark is designated for use on goods/services that are the same as or similar to the goods/services used by the principal or represented person;
(3) The disputed trademark is not the same as the principal or represented person’s trademark; The represented party’s trademark is identical or similar;
(4) The agent or representative cannot prove that its application for registration has been authorized by the principal or represented person.
In trademark dispute cases, the principal, representative or interested party shall file a request for cancellation within five years from the date of registration of the disputed trademark.
3. Determination of agency relationship and representative relationship
3.1 The content of Article 15 of the "Trademark Law" is derived from the provisions of Article 6-7 of the "Paris Convention for the Protection of Industrial Property" Therefore, when defining the agency relationship, the interpretation should be based on the legislative purpose of this article, which is to prevent agents from malicious preemptive behavior that violates the principle of good faith. The agents mentioned in this article not only include agents stipulated in the "General Principles of the People's Republic of China and Civil Law" and the "Contract Law of the People's Republic of China", but also include those who can know the principal based on commercial business dealings. Trademark dealer.
A representative refers to an individual who has a specific identity subordinate to the represented person, performs duties and can know the trademark of the represented person, including legal representatives, directors, supervisors, managers, partnership executors, etc. personnel.
3.2 After the agency relationship ends, if the agent applies for registration of the principal’s trademark, which may cause damage to the interests of the principal or interested parties, Article 15 of the Trademark Law may still be applied to determine whether the trademark has been registered. approve the registration or cancel the disputed trademark.
After the representative relationship ends, the representative’s malicious registration behavior may be implemented with reference to the preceding paragraph.
3.3 The principal may use the following evidence materials to prove the existence of the agency relationship:
(1) The contract signed by both parties;
(2) The relationship between the two parties Transaction vouchers, procurement materials and other evidence materials that can prove the existence of a contractual relationship or commercial business dealings;
(3) Other evidence materials that can prove an agency relationship.
The represented person can use the following evidence materials to prove the existence of the representative relationship:
(1) Enterprise registration information;
(2) Enterprise’s salary schedule, Labor contracts, employment documents, social insurance, and medical insurance materials;
(3) Other evidence that can prove that one party has a specific identity subordinate to the represented person and can be aware of the represented person's trademark when performing official duties Material.
4. Trademarks of the principal and the represented person
4.1 The trademarks of the principal include:
(1) In the contract or authorization document The stated trademark of the principal;
(2) If there is no agreement between the parties, when the agency relationship has been established, the principal shall have previously used the trademark on the goods/services distributed by the agent. shall be regarded as the principal's trademark;
(3) If the parties have not agreed, the trademark used by the agent on the goods/services distributed by the agent will not be used due to the agent's own advertising and publicity. , is enough to cause the relevant public to think that the trademark is a sign that distinguishes the agent's goods/services from the goods/services of others, then it will be regarded as the agent's trademark on the agent's goods/services.
4.2 The represented person’s trademarks include:
(1) Trademarks that have been previously used by the represented person;
(2) Other trademarks that belong to the represented person according to law People's trademarks.
5. The application for registration of the disputed trademark is filed in the name of the agent or representative.
Although the application for registration is not made in the name of the agent or representative, the principal or If there is evidence proving that the registration applicant has colluded with the agent or representative, Article 15 of the Trademark Law shall be applied to determine whether to approve the registration or cancel the disputed trademark.
6. The scope of protection for the trademark of the principal or represented person is not limited to the same goods/services as the goods/services used by the trademark, but also extends to similar goods/services.
7. The agent or representative shall not apply for registration of a trademark mark, which is not limited to the same mark as the principal or represented person’s trademark, but also includes a mark that is similar to the principal or represented person’s trademark. logo.
8. Determination of the agent or representative obtaining trademark registration authorization
8.1 The content of the authorization given by the principal or represented person should include that the agent or representative can register products/services and trademark marks, and the authorization intention should be clear and clear.
8.2 The agent or representative shall submit the following evidence materials to prove the existence of the authorization fact:
(1) The principal or represented person shall submit the following evidence to the agent or representative. Written authorization document;
(2) Other evidence that can confirm that the principal or represented person has made a clear and unambiguous expression of authorization to the agent or representative.
8.3 Although the agent or representative did not obtain explicit authorization from the principal or represented person when applying for registration, but the principal or represented person ratified the application for registration afterwards, The agent or representative shall be deemed to have obtained the authorization of the principal or represented person.
9. Determination of interested parties
According to the provisions of Paragraph 2 of Article 41 of the Trademark Law, in addition to the principal or represented person, interested parties also You can request the Trademark Review and Adjudication Board to rule on canceling the disputed trademark. The following entities are interested parties:
(1) The legal successor of the principal or representative’s trademark;
(2) The owner of the principal or representative’s trademark Licensee;
(3) Other parties who have evidence to prove that they are interested in the case.
Whether it is an interested party shall be determined at the time when the review application is submitted. However, those who already have an interest during the trial of the case shall also be recognized as interested parties.
3. Trial criteria for harming the prior rights of others
Article 31 of the "Trademark Law" Application for trademark registration shall not harm the existing prior rights of others...
1. Introduction
The trademark applied for registration should have priority. This precedence means that the trademark applied for registration must not be related to the trademark previously applied or registered by others. It shall not conflict with other legal rights previously obtained by others. Since other provisions of the Trademark Law have made corresponding provisions on the protection of prior trademark rights, the prior rights stipulated in this article refer to rights other than trademark rights that have been obtained before the date of application for registration of the disputed trademark. , including trade name rights, copyrights, design patent rights, name rights, portrait rights, etc.
In the trial of trademark opposition, opposition review and dispute cases, if issues related to the protection of prior rights are involved, this standard will be used as the principle for individual case determination.
2. Trade name rights
2.1 Applying to register as a trademark the same or basically the same words as a trade name that has been previously registered and used by others and has a certain degree of popularity will easily lead to confusion among the relevant Chinese public. , causing the interests of the prior trade name right holder to be potentially damaged, it shall be deemed as an infringement of other people’s prior trade name rights, and the disputed trademark shall not be approved for registration or shall be revoked.
2.2 Applicable requirements
(1) The date of registration and use of the trade name should be earlier than the date of application for registration of the disputed trademark;
(2) The trade name is registered in China It has a certain degree of popularity among the relevant public;
(3) The registration and use of the disputed trademark can easily cause confusion among the relevant public, causing the interests of the prior trade name right holder to be damaged.
2.3 Definition of prior trade name rights
If a trade name right is used to contest a disputed trademark, the date of registration and use of the trade name should be earlier than the date of application for registration of the disputed trademark.
The fact that you have previously enjoyed the right to a trade name can be proven by using company registration materials, commodity transaction documents using the trade name, advertising materials, etc.
2.4 Determination of the likelihood of confusion
The likelihood of confusion means that the registration and use of the disputed trademark will cause the relevant public to misunderstand the trademark.
The goods/services identified by the trademark come from the trade name owner, or have some specific connection with the trade name owner.
If it is determined that the disputed trademark is likely to be confused with an earlier trade name and may harm the interests of the prior trade name
the following factors should be comprehensively considered:
(1) Originality of the prior trade name.
If the words used in a business name are not common words, but made-up words with no exact meaning
, it can be considered original.
(2) The popularity of the prior trade name.
To determine whether a prior trade name is well-known among the relevant public, the registration time of the trade name, the time span of using the trade name for business activities, geographical scope, business performance, advertising and publicity, etc. should be examined.
(3) In principle, the goods/services designated for use by the disputed trademark and the goods/services provided by the trade name owner should be identical or similar.
2.5 Scope of protection
Based on the originality and popularity of the earlier trade name, as well as the degree of relatedness of the goods/services of both parties, the scope of protection of the earlier trade name will be specifically determined in each case. .
3. Copyright
3.1 Applying to register a trademark for another person’s copyrighted work without the permission of the copyright owner shall be deemed as an infringement of other person’s prior copyright, and the disputed trademark shall be Registration shall be disapproved or revoked.
3.2 Applicable requirements
(1) The disputed trademark is identical or substantially similar to another person’s previously copyrighted work.
(2) The applicant for registration of the disputed trademark has come into contact or is likely to come into contact with other people’s copyrighted works.
(3) The applicant for registration of the disputed trademark does not have the permission of the copyright owner.
3.3 Definition of prior copyright
Prior enjoyment of copyright means that before the date of application for registration of the disputed trademark, others have obtained it through creation of completed works or inheritance, transfer, etc. Copyright.
The fact of prior enjoyment of copyright can be proven by the following evidence materials: copyright registration certificate, evidence materials for the prior public publication of the work, evidence materials for the prior creation and completion of the work, prior inheritance, transfer Evidence of copyright obtained through other methods, etc.
The fact that the parties previously enjoyed the copyright confirmed in the effective judgment document may be recognized in the absence of sufficient contrary evidence.
3.4 "Works" refer to objects protected by the Copyright Law of the People's Republic of China.
3.5 If the applicant for registration of the disputed trademark can prove that the disputed trademark was independently created, it does not constitute an infringement of the prior copyright of others.
3.6 The applicant for trademark registration in dispute shall bear the burden of proof for the fact that he claims to have obtained the permission of the copyright owner.
According to the relevant provisions of the Copyright Law of the People's Republic of China and its Implementing Regulations, the applicant for registration of the disputed trademark shall provide evidence to prove the following circumstances: The applicant for registration of the disputed trademark and the copyright The copyright owner has signed a copyright licensing contract; or the copyright owner has made a direct and clear expression of intention to allow the copyright owner to use the work to apply for a registered trademark.
4. Design patent rights
4.1 Anyone who applies for a registered trademark for a design that has patent rights owned by others on the same or similar goods without authorization shall be deemed to have violated the rights of others. In case of infringement of prior design patent rights, the disputed trademark shall not be approved for registration or shall be revoked.
4.2 Applicable requirements
(1) The design patent authorization announcement date is earlier than the date of application for registration and use of the disputed trademark;
(2) The disputed trademark and the design are used for the same or similar goods;
(3) The disputed trademark and the design are identical or similar;
4.3 Definition of the prior design patent rights of others
The design patent authorization announcement date should be earlier than the disputed trademark registration application date and use date.
If a party claims to have prior enjoyment of design patent rights, it shall submit evidence materials such as design patent certificates and annual fee payment receipts to prove it.
4.4 The trademark in dispute and the design are used for the same or similar goods. If the goods are not identical or similar, it cannot be determined as infringement of the design patent.
4.5 As for the judgment that the disputed trademark and the design are identical or similar, the disputed trademark and the design can be compared as a whole, or the main significant part of the disputed trademark and the design can be compared. Compare key parts.
Regarding the determination that a disputed trademark is identical or similar to a design, in principle, the review standards for identical or similar trademarks shall apply. The text in a design patent only protects its special expression, and its meaning is not within the scope of patent protection.
4.6 The applicant for trademark registration in dispute shall bear the burden of proof for the fact that he claims to have obtained authorization from the design patentee.
5. Name rights
5.1 If you apply for a registered trademark in another person’s name without permission, causing or likely to cause damage to other people’s name rights, the disputed trademark shall not be approved for registration. or revoked.
5.2 Applicable requirements
(1) The disputed trademark is the same as the name of another person;
(2) The registration of the disputed trademark will cause or may cause other people’s name rights to be compromised. Cause damage
harm.
5.3 Other people’s names include real names, pen names, stage names, aliases, etc.
“Others” refer to living natural persons.
"Identical" means using the exact same words as another person's name, or a translation of another person's name, which points to the name owner in the public's perception.
5.4 To determine whether the disputed trademark damages the name rights of others, the degree of awareness of the name rights holder among the public should be considered.
5.5 The applicant for registration of the disputed trademark shall bear the burden of proof for the fact that it claims to have obtained the permission of the name owner.
If you use the name of a public figure to apply for a registered trademark without permission, or if you know it is another person’s name but apply for a registered trademark for the purpose of harming the interests of others, it shall be deemed as an infringement of the right of another person’s name.
If the name right holder withdraws permission before the date of application for registration of the disputed trademark, and if the trademark is applied for registration beyond the goods/services permitted by the name right holder, the use of goods/services not expressly permitted by the name right holder shall be Any application for registered trademark on the service will be deemed to be without permission.
5.6 If the use of a name to apply for a registered trademark disrupts public order and good customs or has other adverse effects, the application shall be reviewed in accordance with the provisions of Article 10, Paragraph 1, Item (8) of the Trademark Law.
6. Portrait rights
6.1 If you apply for a trademark registration with another person’s portrait without permission, causing or possibly causing damage to other people’s portrait rights, the disputed trademark shall not be approved for registration. or revoked.
6.2 Applicable requirements
(1) The disputed trademark is identical or similar to another person’s portrait;
(2) The registration of the disputed trademark creates a negative impact on the portrait rights of others or may cause damage.
6.3 Portraits of others include portrait photos, portrait paintings, etc.
“Others” refer to living natural persons.
“Identical” means that the disputed trademark is exactly the same as the likeness of another person.
“Similar” means that although the disputed trademark is different in composition from the portrait of another person, it reflects the main image characteristics of the other person and points to the portrait right holder in the public’s perception.
6.4 The applicant for trademark registration in dispute shall bear the burden of proof for the fact that he claims to have obtained the permission of the portrait right holder.
Anyone who uses the portrait of a public figure to apply for a registered trademark without permission, or who knowingly applies for a registered trademark for someone else’s portrait, shall be deemed to have infringed on the portrait rights of others.
If the portrait right holder withdraws permission before the date of application for registration of the disputed trademark, and if the trademark is applied for registration beyond the goods/services permitted by the portrait right holder, the use of goods/services that are not expressly permitted by the portrait right holder shall be prohibited. Any application for registered trademark on the service will be deemed to be without permission.
6.5 If the use of another person’s likeness to apply for a registered trademark disrupts public order and good morals or has other adverse effects, it will be reviewed in accordance with the provisions of Article 10, Paragraph 1, Item (8) of the Trademark Law.
7. If the prior right owner or interested party requests the Trademark Review and Adjudication Board to cancel the disputed trademark, the request shall be made within five years from the date of registration of the disputed trademark. The following parties are interested parties:
(1) Licensees of prior rights;
(2) Other parties who have evidence to prove that they are interested in the case.
Whether it is an interested party shall be determined at the time when the review application is submitted. However, those who already have an interest during the trial of the case shall also be recognized as interested parties.
4. Preemptive registration has been used by others and has certain influence
Trademark review standards
Article 31 of the "Trademark Law" applies for trademark registration..., Nor should unfair means be used to preemptively register a trademark that is already used by others and has a certain influence.
1. Introduction
The above regulations are based on the principle of good faith. They protect trademarks that have been used and have certain influence, prevent preemptive registration by unfair means, and make up for the strict implementation of the registration principle. Deficiencies that may result in unfair consequences.
In the trial of trademark objections, objection reviews and dispute cases, if there are issues involving preemptive registration of trademarks that have been used by others and have a certain impact, these standards will be used as the principle for individual case determination.
2. Applicable requirements
(1) The trademark of others has been used and has certain influence before the application date of the disputed trademark;
(2) The disputed trademark Identical or similar to other people’s trademarks;
(3) The goods/services used by the disputed trademark are in principle the same or similar to the goods/services used by other people’s trademarks;
(4) ) The applicant for the disputed trademark has bad faith.
If the owner or interested party of a previously used trademark that has certain influence requests to cancel the disputed trademark in accordance with the provisions of Article 31 of the Trademark Law, the disputed trademark shall be canceled from the date of registration of the disputed trademark. proposed within five years.
3. Determination of a trademark that has been used and has a certain influence
3.1 A trademark that has been used and has a certain influence refers to a trademark that has been used in China and is known to the relevant public within a certain geographical scope Unregistered trademark.
The determination of the relevant public shall be governed by the provisions of Section 3.1 of the "Review Standards for Copying, Imitation or Translation of Others' Well-known Trademarks".
3.2 To determine whether a trademark has certain influence, the following factors should be comprehensively considered based on the circumstances of the case, but it is not assumed that the trademark must meet all of the following factors:
(1) Relevant The public’s awareness of the trademark;
(2) The duration and geographical scope of use of the trademark;
(3) The time, method and extent of any publicity work for the trademark , geographical scope;
(4) Other factors that give the trademark a certain influence.
3.3 The above reference factors can be proved by the following evidence materials:
(1) Contracts, invoices, bills of lading, bank receipts, import bills for the goods/services used in the trademark Export certificates, etc.;
(2) Relevant information on the sales area, sales channels and methods of the goods/services used by the trademark;
(3) Broadcasts involving the trademark , movies, TV, newspapers, periodicals, the Internet, outdoor and other media advertisements, media reviews and other promotional materials;
(4) Information related to the participation of the goods/services used in the trademark in exhibitions and expos ;
(5) Relevant information such as the earliest creation time and continuous use of the trademark;
(6) Award-winning status of the trademark;
( 7) Other information that can prove that the trademark has a certain influence.
3.4 The evidence materials used to prove the use of the trademark should be able to show the trademark logo used, the goods/services, the date of use and the user.
3.5 Whether a trademark has a certain impact will in principle be determined based on the application date of the disputed trademark.
4. Determination of bad faith
To determine whether the applicant for the disputed trademark has bad faith, the following factors may be taken into consideration:
(1) The applicant for the disputed trademark There has been trade or cooperative relations with the prior user;
(2) The applicant for the trademark in dispute is located in the same region as the prior user or the goods/services of both parties have the same sales channels and geographical scope;
(3) The applicant for the trademark in dispute has had other disputes with the prior user, and can know the trademark of the prior user;
(4) Dispute The trademark applicant has had an internal relationship with the prior user;
(5) The applicant for the disputed trademark has the purpose of seeking improper benefits after registration, and uses the prior user to have certain influence on the trademark conduct misleading publicity regarding reputation and influence, coerce prior users into conducting trade cooperation with them, and demand high transfer fees, licensing fees or infringement compensation from prior users or others;
(6 )Other people's trademarks have strong originality;
(7)Other circumstances that can be determined as malicious.
5. Determination of interested parties
According to the provisions of Paragraph 2 of Article 41 of the Trademark Law, in addition to the trademark owner, interested parties may also request trademark review The committee ruled to cancel the disputed trademark. The following parties are interested parties:
(1) Licensees who have certain influence on the trademark;
(2) Other parties who have evidence to prove that they have an interest in the case.
Whether a person is an interested party shall be determined at the time when the review application is submitted. However, those who already have an interest during the trial of the case shall also be recognized as interested parties.
5. By deception or other unfair means