As we all know, registering a trademark is not always smooth sailing and may encounter various ups and downs. From preparing various materials, to going through numerous screenings, to successfully passing the review and preliminary review notice, it can easily take two or three years. Registering a trademark is tantamount to giving birth to a small life. The difficulty and preciousness of it are self-evident.

So, what should you do when you find that the trademark you have worked so hard to "raise" has been used casually by others?

First of all, we must understand that not all The use of trademarks with the same name or similar appearance is a trademark infringement.

So, what is trademark infringement?

Article 57 of my country’s Trademark Law stipulates that any of the following acts is an infringement of the exclusive right to register a trademark:

1. Using the same trademark as its registered trademark on the same kind of goods without the permission of the trademark registrant;

2. Using the same trademark on the same kind of goods without the permission of the trademark registrant; Using a trademark that is similar to its registered trademark on goods, or using a trademark that is the same or similar to its registered trademark on similar goods, which is likely to cause confusion;

3. Selling goods that infringe the exclusive rights of registered trademarks;

4. Forgery or unauthorized manufacture of other people’s registered trademarks or sale of counterfeit or unauthorized registered trademarks;

5. Without the consent of the trademark registrant, change the registered trademark and replace it with The goods with the changed trademark are put into the market again;

6. Deliberately providing facilities for infringing the exclusive rights of others’ trademarks and helping others to infringe the exclusive rights of trademarks;

7. Causing other damage to the exclusive right to use registered trademarks of others.

In other words, any person who sells copycat or high-imitation products that use other people’s trademarks on the same or similar goods, or provides counterfeit trademarks for these products, is an infringement of trademark rights.

How to judge whether an act has constituted trademark infringement?

Now teach you the "four-step judgment method":

The first step is to judge whether there is an objective fact of harm;

The second step is to judge the nature of the behavior Illegality;

The third step is to determine whether the existing damage was caused by an illegal act;

The fourth step is to determine whether the act was intentional.

If after careful identification it is found that the trademark has indeed been infringed, then you have three ways to solve the matter:

First, negotiate with the infringing party to resolve the matter;

Second, request the industrial and commercial administrative department to handle it;

Third, file a lawsuit with the People's Court.

Generally speaking, there is a possibility that negotiation or requesting the industrial and commercial administrative department to handle the matter cannot be reached or an agreement cannot be reached. In this case, you have to choose to file a lawsuit in the People's Court.

The following will focus on several points that should be paid attention to when filing a trademark infringement lawsuit:

1. Collect evidence

Evidence is important in determining the outcome of the case. Factors, whether the right holder collects infringement evidence comprehensively, accurately and adequately are directly related to the court’s final fact finding and judgment result. It is also the main basis for calculating loss compensation and plays a role in effectively safeguarding the legitimate rights and interests of the trademark right holder.

Therefore, collecting evidence is a very important step before filing a trademark lawsuit. We must try our best to find evidence that is relevant to the case and can prove the true situation of the case:

(1 ) Documents proving the prior rights of the infringed party. (Including trademark registration certificate, patent certificate, copyright registration certificate, case-related award certificates, etc.);

(2) Product samples of the infringed party;

(3) Samples of infringing products;

(4) Proof of purchasing infringing products (mainly refers to the purchase invoice. The invoice must indicate the name of the infringing product, the place where the infringing product was purchased, the price of the infringing product, and the sales person’s name, etc.).

2. Consult a professional agency

After preliminary collection and sorting of evidence, you should go to a professional agency for consultation. Professionals will conduct a preliminary analysis of the case and We will provide professional advice on detailed issues, which will help us handle the case better.

What needs to be pointed out here is that there are generally two ways to deal with infringement cases:

1. Administrative investigation and handling. The main advantage of this method is that the investigation and punishment are strong and the investigation and punishment actions are fast. A swift crackdown on counterfeiters and sellers can effectively stop the spread of infringement. However, using this method alone, it is difficult to exhaust the rights granted to complainants by law. What is referred to here is the issue of damages. Generally speaking, the infringer will cause economic losses to the infringed party because of the infringement. At the same time, the complainant will invest a certain amount of money and manpower to stop the infringement. Many companies hope that the infringer will cause the infringement to be caused by the infringement. Provide certain financial compensation to the infringed party to make up for the losses suffered by the infringed party. The current "Trademark Law" and "Product Quality Law" also have clear provisions (see the "Trademark Law" for details). However, due to the difficulty in the implementation process of requesting compensation through administrative agencies, the rights of the infringed party cannot be exhausted. .

2. Litigation procedures. The advantage of applying this procedure is that the investigation force is strong, and the complainant can, in accordance with relevant legal provisions, require the infringer to compensate the infringer for the losses caused to the infringed party by the infringement. However, the litigation procedure is relatively complicated and it is difficult for the complainant to carry out the procedure alone without the assistance of a professional lawyer.

As for the two specific methods, which one is better, the author believes that there is a question of value selection here, and it must be analyzed based on the specific circumstances of different cases.

3. Preparation of indictment

Indictment, like evidence, is a direct factor that directly affects the progress of the case, so it cannot be ignored.

As a legal document, the indictment has strict requirements on format and content. The nature of the case, type of document, requested matters, facts and reasons, etc. must be filled in clearly one by one. In terms of content, It should be based on facts and specific legal provisions as the criterion, embodying the spirit of legal basis and well-documented evidence. Litigation claims should be written in a clear, specific, detailed and concise manner. In addition, when preparing the indictment, attention should be paid to effectively combining facts and tone, which will help the smooth progress of the case.

If you are not familiar with legal terms, Xiaozhi recommends entrusting professionals to complete it. The indictment prepared by professionals with professional legal knowledge and rich experience is more standard and precise, which can greatly increase the possibility of winning the case.

4. Pre-litigation protection measures

Before starting formal litigation, in order to protect your own interests to the greatest extent, in accordance with Articles 65 and 66 of the Trademark Law It stipulates that the right holder may submit pre-litigation evidence preservation and pre-litigation interim measures to the people's court before filing a lawsuit to avoid the loss of evidence or irreparable damage caused by trademark infringement and effectively protect the legitimate rights and interests of the right holder.

It is worth noting that if you want to apply for pre-litigation interim measures, the applicant must provide evidence to the People's Court to prove that others are committing or are about to commit acts that infringe upon its trademark exclusive rights, and if the acts cannot If stopped in time, the applicant's legitimate rights and interests will be irreparably damaged. If the evidence cannot be provided or the evidence is insufficient, it will not be possible to apply for pre-litigation interim measures. Trademark Registration Application Trademark Infringement