6. Practical knowledge of well-known trademark identification

1. How should an enterprise apply for a Chinese well-known trademark?

For enterprises, "China's Well-known Trademark" is not only an honor, but also a system for trademark protection. Governments of various countries have provided special protection for "well-known trademarks", and our country has formulated special laws to increase the protection of "well-known trademarks". Some local governments even give huge rewards to "well-known trademarks". my country's protection for "well-known trademarks" is much wider than that of ordinary registered trademarks, and the scope of protection extends to other categories of goods. In addition to being widely recognized by consumers, "well-known trademarks" have also become one of the indicators for consumers to evaluate a company's comprehensive strength, product quality and corporate reputation.

2. Ways to identify well-known trademarks

"Well-known trademarks" are the highest honor in the trademark field. There are tens of millions of trademarks across the country. So far, they have been recognized as "well-known trademarks" by the State Administration for Industry and Commerce. There are only 1,234 "well-known trademarks", which is truly one in a million (the number of well-known trademarks recognized by the intermediate people's courts in various places is not discussed in this article because there is currently no authoritative statistics). It can be seen that there are strict requirements for "well-known trademarks" and it is also very difficult to apply for them.

In the past, applications for "well-known trademarks" in my country were made directly to the State Administration for Industry and Commerce (Trademark Office). There were no clear identification standards and specific application procedures, and there was no fixed identification method. Sometimes nearly a hundred are approved in a year, and sometimes not even a single one is approved throughout the year. After the promulgation of the "Regulations on the Recognition and Protection of Well-known Trademarks" in 2003, the channels and methods for applying for "well-known trademarks" have fundamentally changed.

According to the provisions of Articles 4 and 5 of the "Regulations on the Recognition and Protection of Well-known Trademarks" and other regulations, there are currently four ways to apply for a "well-known trademark" in my country:

(1) Determination in trademark opposition

Trademark opposition refers to a trademark that has passed preliminary examination by the Trademark Office. Before obtaining the registered trademark certificate, the Trademark Office first announces it. During the announcement period, anyone can Objections can be raised on reasonable grounds. In the process of filing an objection, you can point out that the trademark may constitute an infringement of your own trademark, and you can also apply for recognition that your trademark is a well-known trademark.

(2) Determination in trademark disputes

Trademark dispute refers to a company that believes that a registered trademark infringes its own trademark and proposes to the Trademark Office to cancel the registered trademark Dispute application. During the process of filing for revocation, you can also apply to recognize your trademark as a well-known trademark.

(3) Determine in trademark case management

If a trademark is counterfeited, it means that the goods using the trademark are very popular. Based on this point, if the local industrial and commercial bureau discovers counterfeiting of this trademark during the anti-counterfeiting process, it can request the Trademark Office of the State Administration for Industry and Commerce to recognize the trademark as a well-known trademark based on the application of the party concerned.

(4) Determination by the People's Court at Intermediate Level or above

According to Article 22 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases": "The People's Court shall In hearing trademark dispute cases, according to the request of the parties and the specific circumstances of the case, a determination can be made according to law whether the registered trademark involved is well-known. ”

Analysis of application channels

1. In the case of trademarks. Application under opposition

Application authority: Trademark Office of the State Administration for Industry and Commerce

Prerequisite: There must be a trademark that is identical or similar to the trademark to be applied for as a "well-known trademark" and is in the announcement period.

The difficulty: the probability that a target trademark can be the object of opposition during the announcement period and meets the conditions for applying for a "well-known trademark" is very small. If you specifically apply for registration, there are two hurdles: 1. It is relatively difficult to apply for registration, and it is very likely to be directly rejected, and you will not be able to enter the announcement period. 2. Even if you can enter the announcement period, the waiting process from application to announcement will be more than one year or even two or three years.

Advantages: It is relatively straightforward, with few intermediate links. You can apply directly to the National Trademark Office, and the upfront cost is relatively small.

Disadvantages: It is difficult to find the target trademark. Even if the target trademark is found, the other party will fight hard after entering the opposition stage, and the opposition time will become unpredictable. Reapplying for a qualified target trademark is not easy to operate, takes a long time, and there are many unknown factors that cannot be grasped.

There are “well-known trademarks” recognized in this way every year.

It should be noted that when applying for a trademark objection, in addition to submitting an application, making a request, and listing the reasons for the objection, a trademark opposition fee of 1,000 yuan is required for each application. This method currently takes about one and a half to two years.

2. Apply in a trademark dispute

Application authority: Trademark Review and Adjudication Board of the State Administration for Industry and Commerce

Prerequisite: The trademark must be the same as the well-known trademark to be applied for or similar registered trademarks, and try to do so within the five-year dispute period.

The difficulty: Same as above, the target trademark is difficult to find. If the re-application time is longer than the first way, it will take at least 2 years before it is possible to submit an application for recognition as a "well-known trademark".

Advantages and disadvantages: Same as the first method.

There are well-known trademarks recognized in this way every year.

It should be noted that when applying for a trademark dispute, in addition to submitting an application, making a request, and listing the reasons for the dispute, a trademark dispute fee of 1,500 yuan is required for each case. This method currently takes about one and a half to two years.

3. Apply during trademark case management

Application authority: local industrial and commercial bureaus at the municipal and provincial levels will review and then report to the Trademark Office of the State Administration for Industry and Commerce for recognition

Advantages : Compared with the above two options, this option is the most convenient. It does not need to rely on any existing published trademark or registered trademark, but it requires the objective existence of trademark infringement cases, and the products used by the infringing trademark must be different from the products used for the trademark application. Relatively speaking, in this way, enterprises can control themselves and design their own plans, and the time is relatively short. At present, this method generally takes about one to one and a half years.

Disadvantages: There are many industrial and commercial agencies involved, and there are many intermediate links. It requires good planning and operation. Due to the phenomenon of over-plucking, the cost will be relatively large.

It is relatively common to identify "well-known trademarks" in this way. Currently this method is the main way to apply for a well-known trademark.

4. Court determination

Application authority: Intermediate or above local people's courts

The problem: The court determines that well-known trademarks and the Industrial and Commercial Bureau are not the same way. Another identification system. Well-known trademarks recognized by the court do not need to go to the national industrial and commercial department for re-identification or obtain a certificate. The court determined that well-known trademarks can only be recognized in domain name infringement and trademark infringement litigation cases.

Advantages: It takes a short time and can usually be recognized in half a year to one year. Due to the different qualities of judges in various local courts, local courts have a loose or tight grasp of the recognition conditions stipulated in the law. Companies with less than excellent conditions like to use this method to recognize well-known trademarks.

Disadvantages: 1. Since there are many public doubts about the court's overly loose conditions for determining well-known trademarks, the difficulty of court determination is increasing. Generally, it needs to be reported to the Provincial High Court for review before the judgment is made, and it needs to be reported after the judgment takes effect. Filing with the Supreme Court; 2. Currently, some courts publicly charge higher fees for well-known trademark recognition cases, and some judges even charge fees privately, resulting in an increasing trend in the cost of this method of recognition; 3. Due to the proliferation of well-known trademark recognition by courts in recent years, The popularity of some well-known trademarks recognized by the court is too low, coupled with serious fraud by individual applicant companies, resulting in the declining public credibility of well-known trademarks recognized by the court; 4. Due to China’s official-based tradition, some companies and the public consider mid-level Well-known trademarks recognized by the court do not have the authority recognized by the State Administration for Industry and Commerce, and some outstanding enterprises disdain to recognize well-known trademarks in this way; 5. Some local governments do not reward or halve the rewards for well-known trademarks recognized by the court; 6. Some local industrial and commercial enterprises The department does not pay attention to the protection of well-known trademarks recognized by the court.

It is relatively common to identify "well-known trademarks" through this method, especially for companies with poor conditions.

Suggestions for enterprises:

After understanding the above application methods and the advantages and disadvantages of various methods, enterprises can decide which application form to adopt. If the company has professionals in this field, you can apply by yourself. If there are no professionals in this field, it is recommended that the enterprise adopt the form of entrustment and entrust intellectual property agencies, trademark firms, law firms, advertising companies and other institutions with expertise in well-known trademark declaration to act as agents.

When choosing an agency, it is recommended that companies:

1. Focus on examining the other party’s professional capabilities, rather than placing too much emphasis on whether the other party has connections. This is because in China, relationships matter. Of course it is important, but for such professional issues, professional ability is more important than relationships.

2. Don’t be superstitious about the other party’s promises. Some people say they are guaranteed to succeed, but in fact this may not be the case. It is better to choose an agency that is honest, practical and does not brag.

3. It is not necessary to choose a well-known large company as an agent. Because the business of large companies is relatively busy, they may not necessarily treat every customer attentively. On the contrary, some small companies with strong professional capabilities provide more attentive services.

4. Cost should be considered, but don’t think that higher cost is better or lower cost is better. The state does not stipulate a unified charging standard for well-known trademark agency. It is recommended that enterprises seek consultation from several agencies and then select agencies with strong professional capabilities, dedicated services and moderate fees for agency.

3. What kind of trademarks are expected to be recognized as well-known trademarks in China?

According to the provisions of Article 14 of the Trademark Law, combined with our experience in assisting outstanding companies in applying for and identifying well-known Chinese trademarks, we believe that companies that basically meet the following minimum requirements can try to apply Recognized as a well-known trademark in China. Of course, this is not a national standard, and the data requirements for each industry will be different, so this document is for enterprise reference only.

1. There are specific cases of trademark infringement or objections to infringement or disputed trademarks. This article is the key to starting the application process.

2. Except for special circumstances, the registered capital of the enterprise holding the trademark should generally be no less than 10 million yuan, and the total assets should generally be more than 500 million yuan.

3. The registration and use time of the trademark should be more than 3 years. It is difficult to identify if the use time is shorter. But if it is an unregistered trademark, it can also be a very well-known one, such as Little Sheep, Super Girl, and Mengniu Sour Yogurt.

4. If the trademark is a provincial famous trademark, the company will have a huge advantage if it has won more national and provincial honors.

5. The current value of the trademark, as assessed by relevant agencies, should generally be more than 10 million yuan.

6. The output value of the trademark owner's products using the trademark in the past three years should be more than 300 million yuan each year, the sales revenue should be more than 300 million yuan each year in principle, and the market share should be the highest in the country. Ranked among the top 20 in the industry.

7. The annual tax paid by the trademark owner in the past three years should generally be more than 10 million yuan.

8. The product market is not limited to the local area. The products are sold to at least half of the provinces and municipalities across the country. It is best to have a nationwide sales network. It would be better if the products are sold abroad. In other words, the sales area of ??goods using this trademark should cover major regions across the country.

9. The trademark should carry out multi-channel, all-round and uninterrupted advertising. The advertising expenses of provincial and central media in the past three years should be no less than 5 million yuan per year. Publicity includes media advertising, promotional activities, outdoor advertising, trade fairs, etc. (This article has different requirements according to different products. Mass products require more advertising, and intermediate products require lower requirements.)

10. It is best for the enterprise to be a governing unit of national industry associations and chambers of commerce.

11. Enterprises are the best setters and participants of industry standards.

12. The company’s flagship product has won the title of Chinese Brand Product as the Best.

13. The company’s flagship product has won the title of national inspection-free product as the best.

14. The small size of the company is not important, the key is the industry ranking. Because in some industries all companies are small.

15. Large-scale enterprises may not meet the requirements, because perhaps all enterprises in this industry are large enterprises.

Attachment: Common knowledge for applying for recognition of well-known Chinese trademarks

1. Introduction to Chinese well-known trademarks

A Chinese well-known trademark refers to a trademark that is widely known to the relevant public within China For a trademark brand that enjoys a high reputation, its recognition must go through certain legal procedures and be recognized by the Trademark Office of the State Administration for Industry and Commerce or the Trademark Review and Adjudication Committee of the State Administration for Industry and Commerce or by an intermediate or above people's court. In other words, there are two ways to identify China’s well-known trademarks: administrative identification and judicial identification.

The protection of China’s well-known trademarks under the Trademark Law of the People’s Republic of China has been extended to categories other than exclusive trademark rights. Specifically, China's well-known trademarks have the right to request the cancellation of other people's copies, imitations, and translations of well-known trademarks registered in other categories; they have the right to request the cancellation of other people's registration of well-known trademarks as corporate names and other rights that ordinary trademarks do not have. . It is protected by international laws such as the Paris Convention for the Protection of Industrial Rights and the Agreement on Trade-Related Aspects of Intellectual Property Rights.

2. What kind of trademarks are expected to be recognized as well-known trademarks in China

The main criterion for whether a trademark is a well-known trademark in China is that the trademark enjoys a high reputation among the relevant public and has a high reputation among the relevant public. Be well known to the relevant public. According to Article 14 of the Trademark Law, the following factors should be considered in determining a well-known trademark:

1. The relevant public’s awareness of the trademark

According to the provisions of Article 2, paragraph 2, of the "Provisions on the Recognition and Protection of Well-known Trademarks", the relevant public includes consumption related to a certain type of goods or services marked by the use of the trademark operators, other operators who produce the aforementioned goods or provide services, as well as sellers and related personnel involved in distribution channels. For example, the goods or services using a certain trademark belong to the field of computer information technology, and the degree of awareness of the trademark by many people associated with the field of computer information technology is the "degree of awareness of the trademark by the relevant public." The fact that many people not related to the field of computer information technology know or do not know the trademark does not affect the trademark being recognized as a well-known trademark. In other words, well-known does not mean that it is recognized by everyone or has a high reputation among all members of the public, but it means that it is well-known among relevant consumers, that is, it does not need to be "widely known".

2． Duration of use of the trademark

The main way for trademark owners to utilize and exercise their exclusive rights is to use their trademarks. Regardless of whether a trademark is registered or not, only by using it can its value be reflected in transactions and the intangible property rights of the trademark be transformed into material wealth. For unregistered trademarks, only continuous use can reflect the existence of the trademark, and it is possible to generate distinctiveness through use, thereby creating visibility among the relevant public. Otherwise, the public will have no way of understanding the trademark, let alone becoming well-known. For registered trademark rights holders, using the trademark is their obligation. Therefore, it is also very necessary to consider the duration of trademark use as a factor in determining a well-known trademark. According to the provisions of Article 3, Item 2 of the Provisions on the Recognition and Protection of Well-known Trademarks, relevant materials proving the duration of use of the trademark include relevant materials regarding the history and scope of use and registration of the trademark.

3． The duration, extent and geographical scope of any publicity work for the trademark

In today's increasingly fierce market competition, both commodity manufacturers and service operators regard publicity and promotion of their products as a priority. The most important thing is that publicity efforts are constantly increasing. Especially with the development of communication technology and information network technology, the publicity effect of various publicity media such as television, radio, Internet, newspapers and periodicals has become more and more obvious. Many people have a certain brand awareness. Knowledge of (trademark) comes from various advertising campaigns by manufacturers or operators. Therefore, by understanding the duration, extent and geographical scope of any publicity work for a trademark, we can know more clearly the degree of public awareness of the trademark in a certain area.

In accordance with the provisions of Article 3, Item 3 of the Provisions on the Recognition and Protection of Well-known Trademarks, relevant materials proving the duration, extent and geographical scope of any publicity work for the trademark, including the methods, geographical scope, and publicity of advertising and promotional activities Types of media, amount of advertising, and other relevant materials.

4． Record of the trademark being protected as a well-known trademark

If a trademark has been protected as a well-known trademark in my country, then the owner of the trademark can provide relevant supporting documents, which is helpful for determining whether the trademark is well-known. Trademarks have very important reference value. If a trademark has been protected as a well-known trademark abroad, the owner of the trademark can also provide various supporting documents that identify the trademark as a well-known trademark. These documents also play an important reference role in identifying well-known trademarks in my country. According to the provisions of Article 3, Item 4 of the "Provisions on the Recognition and Protection of Well-known Trademarks", relevant materials proving that the trademark is protected as a well-known trademark, including relevant materials that the trademark has been protected as a well-known trademark in China or other countries and regions .

5． Other factors that make the trademark famous

This item is a blanket clause to adapt to the evolving actual needs of well-known trademark protection. According to the provisions of Article 3, Item 5 of the "Provisions on the Recognition and Protection of Well-known Trademarks", other evidence materials proving that the trademark is well-known, including the output, sales volume, sales revenue, profits and taxes, and sales area of ??the main goods using the trademark in the past three years and other related materials.

3. Three principles for recognition of well-known trademarks in China

1. Passive principle: that is, the enterprise must take the initiative to apply.

2. Case-by-case principle: that is, when an enterprise files an application for a trademark case, the identification authority will recognize each case based on whether the enterprise's trademark meets the requirements of the "Regulations on the Recognition and Protection of Well-known Trademarks".

3. The principle of objective fame: that is, objective fame within a certain range.

IV. The ways and time to identify China’s well-known trademarks through administrative means

(The judicial identification method is more complicated and will not be introduced here)

Applying for administrative approval There are three application procedures for identifying China’s well-known trademarks:

(1) Through trademark disputes: Regarding the trademark A that has been registered by other companies and individuals, the company concerned believes that the trademark A violates Article 10 of the Trademark Law If the provisions of Article 3 infringe upon the rights and interests of enterprise B’s trademark, the enterprise concerned can directly file a dispute with the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce in accordance with the Trademark Law and its Implementing Regulations and request a ruling to cancel the registered trademark A. , and at the same time recognized the company's B trademark as a well-known trademark.

(2) Pass trademark objection: Regarding A’s trademark that is being registered by other enterprises and individuals, has been initially reviewed and is within the announcement period, the enterprise concerned believes that A’s trademark violates Article 13 of the Trademark Law If the provisions of the Trademark Law of the People's Republic of China infringe upon the rights and interests of trademark B of the enterprise, the enterprise concerned can directly raise objections to the Trademark Office of the State Administration for Industry and Commerce in accordance with the "Trademark Law" and its "Implementing Regulations", requesting the Trademark Office not to register trademark A, and at the same time determine that The B trademark of our company is a well-known trademark.

(3) Through trademark management cases:

1. It is easy for others to use the same or similar trademarks as the well-known trademarks not registered in China on the same or similar goods without authorization. Causing confusion;

2. Others use trademarks that are identical or similar to the well-known trademarks registered in China by others on different or dissimilar goods without authorization, which can easily mislead the relevant public and cause harm to the interests of the parties. May be damaged;

In both cases, according to the "Measures for the Recognition and Protection of Well-known Trademarks", you can report to the Case Guidance Office of the Trademark Office of the State Administration for Industry and Commerce to request that your trademark be recognized as a well-known trademark.

Both dispute and objection procedures can be handled directly by the State Administration for Industry and Commerce without going through the local industrial and commercial bureau. During the acceptance process, the other party also has the right to make a representation (there is no time limit in the law).

The procedure for unauthorized use is: Since the entire recognition process is initiated for a case other than the exclusive right to use a trademark, the company involved needs to report the case to the municipal industrial and commercial bureau where the case occurred, and the local industrial and commercial bureau will accept the case. The provincial industrial and commercial bureau will respond within 15 working days from the time the case is accepted, and report it to the Case Guidance Office of the Trademark Office of the State Administration for Industry and Commerce. ; The Case Guidance Office of the Trademark Office of the State Administration for Industry and Commerce will provide a reply within 6 months from the date of accepting the case (both are within the time prescribed by law).

5. Basic materials that an enterprise needs to submit when applying for recognition of a well-known Chinese trademark

(1) Relevant materials proving the relevant public’s awareness of the trademark;

( 2) Relevant materials proving the continuous use of the trademark, including relevant materials related to the use, registration history and scope of the trademark;

(3) Proving the duration, extent and geographical scope of any publicity work for the trademark Relevant materials, including the methods of advertising and promotion activities, geographical scope, types of publicity media, and the amount of advertising;

(4) Relevant materials proving that the trademark is a protected record as a well-known trademark , including relevant materials that the trademark has been protected as a well-known trademark in China or other countries and regions;

(5) Other evidence proving that the trademark is well-known, including the main products using the trademark in the past three years Production, sales volume, sales revenue, profits and taxes, sales area and other relevant materials.