Since the E-Commerce Law is still in the drafting stage, the trademark infringement cases of Didi and Didi did not have an impact on the E-Commerce Law. At the same time, the trademark infringer did not obtain the permission of the trademark owner. Using a trademark that is identical or similar to its registered trademark on the same or similar goods, or other behaviors that interfere with or hinder the trademark owner from using its registered trademark and damage the legitimate rights and interests of the trademark owner. The infringer is usually liable to cease the infringement, and the perpetrator who knew or should have known that the infringement was infringement is also liable to compensate. If the circumstances are serious, you will also bear criminal liability.

Legal Basis

Article 32 of the "Trademark Law" Application for trademark registration shall not damage the existing prior rights of others, nor shall it be used to preemptively register a trademark that has been used and used by others by unfair means. A trademark with certain influence.

According to Article 52 of the "Trademark Law", acts that infringe upon the exclusive right to use a registered trademark mainly include the following types:

1. Without the permission of the registered trademark owner, The act of using a trademark that is identical or similar to a registered trademark on the same or similar goods.

2. The act of changing the registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark back into the market. This behavior is also known as "reverse impersonation" in theory.

3. Selling goods that infringe the exclusive rights of registered trademarks. Combined with the provisions of Article 56, Paragraph 3 of the Trademark Law: If you sell goods that are not known to infringe the exclusive rights of a registered trademark, you will not be liable for compensation if you can prove that you legally obtained the goods and explain the supplier. Therefore, this form of trademark infringement requires subjective knowledge by the seller.

4. The act of counterfeiting or unauthorized manufacturing of registered trademarks of others or selling counterfeit or unauthorized registered trademarks. It should be noted that this infringement is a trademark infringement, including "manufacturing" and "sales-sale".

5. Acts that cause other damage to others’ exclusive rights to use registered trademarks.

Article 50 of the "Regulations for the Implementation of the Trademark Law" and Article 1 of the Supreme People's Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Cases" fall under Article 52 of the "Trademark Law" Behaviors that cause other damage to the exclusive right to use a registered trademark of others as stipulated in Article 5 include:

1. Using a sign that is identical or similar to another’s registered trademark as a product name on the same or similar goods , decoration and use to mislead the public;

2. Deliberately providing warehousing, transportation, mailing, concealment and other convenient conditions for infringement of the exclusive rights of registered trademarks of others;

3. Words that are identical or similar to others’ registered trademarks are used as the company’s trade name or are used prominently on identical or similar goods, which is likely to cause misunderstanding by the relevant public;

4. Using words that are identical or similar to others’ registered trademarks Registering text as a domain name and conducting e-commerce activities related to commodity transactions through this domain name may easily lead to misunderstanding by the relevant public.

Similar trademarks

The identification of similar trademarks or logos is an indispensable and important step in determining trademark infringement. Infringement can only be established if the two conditions of "similar trademark or logo" and "use on the same or similar goods" are met. Similar trademarks are different from identical trademarks. Although there are certain visual differences, they are similar to registered trademarks in other aspects such as pronunciation and meaning, and are enough to cause misunderstanding or confusion among consumers. When examining whether two trademarks are similar, the following aspects should generally be considered:

1. Trademark appearance

That is, the visual image of the words, graphics or combinations of the two trademarks Observe it from the perspective of an average consumer to see if it can cause misunderstanding or confusion. For example, the "HOVER" graphic trademark of a domestic company is only one letter different from the registered graphic trademark "HOOVER" of a foreign company. The visual similarity and the pronunciation are basically the same, which is enough to cause consumers to misunderstand. They should be recognized as similar trademarks. . Another example is that the letters "SAFINO" used by a domestic company are exactly the same as the "SANOFI" trademark previously registered by a foreign company. Only the order of the last four letters is slightly different. However, the overall structure and pronunciation of the two trademarks are very similar. It is extremely easy for consumers to misunderstand, and therefore constitutes a similar trademark used on similar goods.

2. Trademark pronunciation

Based on people’s hearing, determine whether two trademarks are confusing due to similar pronunciation.

For example, although "Didi" has different meanings from "Didi", due to similar pronunciation, especially when used in a Chinese language environment, they constitute similar trademarks.

3. Trademark Meaning

Analyze whether the two trademarks have the same or similar meaning and cause confusion among consumers about the source of the goods. For example, "BLUE SKY" and "Blue Sky" have the same meaning in Chinese. It is easy for people to misunderstand the relationship between manufacturers and specific products, and mistakenly believe that products labeled with "BLUE SKY" are part of the "BLUE SKY" series of products.

Normal use

The unauthorized use of words and graphics that are identical or similar to a registered trademark does not necessarily constitute trademark infringement. This depends on whether its use is justified. For example, "Didi" is a legally registered trademark of one company, and another company uses the word "Didi". Since "Didi" is not used here as a trademark or a product name, but as a normal description of the product, it should not be deemed to constitute an infringement of the exclusive right to use the registered trademark "Didi".

Other factors

In the process of identifying trademark infringement cases, in addition to the factors that need to be grasped above, there may also be other factors involved, such as the popularity, distinctiveness, and specificity of the trademark. The method of use, degree of subjective fault, and the relationship between the parts and components of the product as a whole, etc. Due to the inconsistency in other factors involved in individual cases, the determination of trademark infringement will also be inconsistent. As far as the popularity of a trademark is concerned, generally speaking, the higher the popularity, the wider the scope of protection, and the greater the possibility that it will be deemed as trademark infringement when others use it without authorization.

Impact of the case

The issue of trademark infringement is a work with strong legal, policy and operational aspects. It involves both legislative, judicial and law enforcement levels, as well as to economic, cultural, political, diplomatic and other fields, so it is a huge and complex systematic project.

Reference materials come from: Baidu Encyclopedia

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