Trademark right, the abbreviation of trademark exclusive right, refers to the exclusive right granted by the trademark authority to the trademark owner in accordance with the law to protect the registered trademark under national law. How much do you know about trademark rights? Below, the editor will introduce you to the relevant legal knowledge of trademark rights in detail. Principles for resolving conflicts of trademark rights

The conflict of rights between trademark rights and design patent rights refers to the use of the same or similar words and graphics between design patents and registered trademarks of different owners. This leads to confusion and conflict between the two rights. How to resolve the conflict between trademark rights and design patent rights has always been the focus of research by experts and scholars studying intellectual property conflicts in my country.

Some scholars believe that when resolving conflicts of rights between design patent rights and trademark rights, the principle of "protecting prior rights holders" should be followed; some scholars believe that "maximizing benefits" should be followed Principle: Some scholars advocate following the principle of "negative external effects of restricting rights".

The above-mentioned views are very useful in solving the conflict of rights between trademark rights and design patent rights in my country's practice, and they are also of certain significance to the improvement of my country's relevant legal systems. However, when it comes to understanding the principles for resolving conflicts of intellectual property rights, one should not emphasize one principle in a one-sided and isolated manner, but should grasp it as a whole.

(1) The principle of respecting prior rights

The so-called principle of respecting prior rights means that the legal acquisition of any right must be based on the premise that it does not infringe the legitimate prior rights of others. , otherwise the right will be deemed invalid. Due to the unique exclusivity of intellectual property rights, when there is a conflict of rights between a trademark and a design patent, determining the order in which the rights holders obtain the rights is one of the more practical principles for resolving this conflict of rights.

The principle of respecting prior rights is a principle commonly adopted by civil law countries. However, in terms of the intensity of protection, some countries adopt the principle of absolute protection, that is, protecting prior rights no matter what the conditions. It stipulates that prior rights can only be protected under certain conditions and there is a limit to the period of protection, that is, the principle of relative protection of prior rights is adopted.

According to the provisions of Article 6-5, paragraph 2, of the Paris Treaty, the trademark applied for registration shall not infringe upon the vested rights of the national right holder requested for protection. Otherwise, the registration will not be approved. The registration has been approved. should be revoked. Paragraph 5 of Article 16 of the TRlPS Agreement also stipulates that a trademark shall not infringe any existing prior rights.

The principle of protection of prior rights is also fully reflected in my country’s current laws. Article 9 of the new Trademark Law stipulates that "the trademark applied for registration shall not conflict with the legal rights previously obtained by others." Article 23 of the Patent Law also stipulates that the design for which patent rights are granted shall not conflict with the previously acquired legal rights of others. These two provisions can effectively prevent conflicts between design patent rights and trademark rights.

For example, when the Trademark Office examines a trademark application for registration, it can reject the application of the trademark applicant on the grounds that the trademark applied for registration infringes upon the legal design patent rights of others: or the Patent Office may When reviewing a design patent, if it is found that the design infringes upon the prior legal trademark rights of others, the application for the design patent can be rejected. Our country's laws should adopt the principle of relative protection when applying the principle of protection of prior rights, and we cannot ignore it for subsequent rights, and we must also realize that subsequent rights exist objectively.

(2) Principle of good faith

When dealing with conflicts with design patent rights, some people believe that prior rights must be better than later rights, and that prior rights and subsequent rights When a conflict occurs, it is debatable whether it is appropriate to only protect the prior rights but not the subsequent rights. As early as the Paris Convention, a principle has been stipulated that any behavior that conflicts with good faith constitutes unfair competition.

From the legislative level of civil law, the principle of good faith involves two interest relationships: the interest relationship between the parties and the interest relationship between the parties and society. The purpose of the principle of good faith is to achieve a balance between these two interests.

The principle of good faith requires respecting the interests of others, treating the affairs of others with the same attention as one's own, and not benefiting oneself at the expense of others; the principle of good faith requires that parties shall not harm the interests of third parties and society through their civil activities. Both trademark rights and design patent rights are obtained through certain civil legal actions. During the acquisition process, the parties concerned should abide by the principles of fairness and good faith stipulated in the General Principles of Civil Law.

(3) Principle of balance of interests

The law is an adjuster of social interests, which determines that it must take into account and balance numerous social interests. Therefore, when resolving trademark rights and design patents When there is a conflict between intellectual property rights and rights, the balance between rights should be taken into consideration on the premise of respecting the independence of rights. Intellectual property rights should not be favored and public rights and interests ignored, or vice versa.

The principle of balance is sometimes difficult to grasp. In practice, the principle of balance varies from time to time and case to case, and is not static. Generally speaking, it is based on the overall benefit of society and abides by the principle of social interests, that is, personality rights. Citizens' constitutional rights are more important than general property rights, and the rights to represent social interests are more important than the rights to represent personal interests.

As a social individual’s monopoly on specific knowledge products, intellectual property rights should not be absolute and unrestricted, but should have certain limits to adjust the balance of interests between social individuals and society as a whole. . From the perspective of the rationality of protecting intellectual property rights, it requires that when improving the intellectual property legal system, it is necessary to adjust the interest relationships between different subjects to prevent improper use. When resolving conflicts between trademark rights and design patent rights, the principle of balance of interests should also be followed.

(4) Principle of procedural protection

When dealing with conflicts between trademark rights and design patent rights, the principle of rights protection should also be followed.

Due to the censorship system in our country, some improper authorization and repeated authorization have resulted. For this reason, both the Patent Law and the Trademark Law have set up remedial procedures for correction. Through these channels, incompatible patents can be corrected. Patent rights and trademark rights granted by law shall be revoked.

As far as a design is concerned, if the same or similar pattern has been publicly published or announced as a trademark before the date of application, the design should be revoked: and before the date of trademark application , if the design patent right has been granted, the trademark should be revoked. When one of the two conflicting rights is revoked, the conflict of rights is resolved.

Related reading: Acquisition of trademark rights

1. Acquisition of trademark rights refers to the principles and methods to be used to obtain trademark rights.

2. There are three principles for obtaining trademark rights:

(1) Principle of use

The principle of use, that is, the principle of obtaining trademark rights through use, refers to Trademark rights arise naturally from the use of a trademark, and trademark rights are established based on the fact of trademark use.

(2) Registration principle

The registration principle, that is, the principle of obtaining trademark rights by registration, means that trademark rights are established due to the fact of registration, and only by registering a trademark can trademark rights be obtained.

(3) Mixed principle

The mixed principle, that is, the compromise principle, means that when determining the establishment of a trademark right, both use and registration facts are taken into consideration. The trademark right can be obtained due to registration. Produced or established through use.

3. There are two ways to obtain trademark rights: original acquisition and inherited acquisition. The original acquisition of trademark rights, also known as the direct acquisition of trademark rights, means that the trademark right is created, and its creation is not based on the existing trademark rights of others, nor is it based on his will. The inherited acquisition of trademark rights, also known as the transfer of trademark rights, refers to the acquisition of trademark rights based on the existing trademark rights of others and the will of others. Trademark rights