Abstract: How to prove the popularity of a trademark in trademark disputes? In cases of trademark infringement, when determining whether the defendant has committed infringement or determining the amount of compensation for the defendant, the extremely important basis for judgment is the popularity of the right holder's trademark. Because trademark visibility belongs to the conceptual category of social evaluation. It is intangible and dynamic, making it difficult to self-verify directly. It needs to be comprehensively supported by evidence such as product sales and market rankings. Who bears the burden of proof of trademark infringement

The burden of proof of trademark infringement lies with the plaintiff. If the defendant makes an active defense, the defendant shall bear the burden of proof of his own behavior. Article 64 of the Civil Procedure Law stipulates that parties concerned have the responsibility to provide evidence for their claims.

Determine the infringer, the specific form of infringement, the number of infringing goods, and the exact location where the infringement (or infringing goods) occurred for various infringements. The burden of proof that should be borne is:

1. Proof of the prior rights of the infringed party (including trademark registration certificate, etc.);

2. Product samples of the infringed party;

3. Samples of infringing products;

4. Proof of purchase of infringing products (such as invoices, etc.);

5. Conduct inspections for various infringing trademarks or infringing trademark products and packaging Documents for printing, warehousing, transportation, mailing, etc.

If the defendant raises questions about the plaintiff’s accusations and evidence, it can use evidence that the registered trademark has been revoked by the Trademark Office ex officio, canceled by itself, or signed a trademark license contract or trademark transfer contract with the plaintiff, etc. To refute that it did not infringe the plaintiff’s trademark rights.

How to prove the popularity of a trademark in a trademark dispute

Some trademarks, although not heavily advertised, are well known to the public in practice, such as McDonald's. Compared with other products, its advertising intensity is not large, but it is well known to women and children. For the popularity of such trademarks, if only advertising materials and other evidence are used, the legal popularity determined based on this is usually far away from its actual popularity. Therefore, the general identification method should no longer be adhered to during the trial. Appropriately reduce the burden of proof on the right holder. When making specific determinations, you can mainly refer to the following three factors:

1. Market research on the market awareness of the trademark through a neutral third-party random survey. The corresponding popularity can be inferred based on this. For example, the McDonald's trademark. Through investigation, it can be shown that the popularity of the trademark is no longer limited to the specific relevant public categories, that is, the corresponding consumers and operators, but extends to the general public. It can be deemed to have reached a well-known level.

2. Evidence about market share. If the product identified by a certain trademark has a share in the market. Being at the forefront of the market share of similar products can usually help indicate that the trademark has a high reputation.

3. Appropriate application of the other party’s recognition rules, that is, during the trial, if the defendant admits that the right holder’s trademark is well known to the general public, the judge can combine it with his own life experience. Directly determine the popularity of the trademark without mechanically following the principle of comprehensive recognition.