1. In commercial activities, whether you use the words "well-known trademark" to introduce your own trademark or introduce other people's trademarks, it is prohibited

Article 53 of the new "Trademark Law" Setting a blanket penalty of 100,000 yuan for violators once caused controversy over the scope of regulation and the targets of punishment. Some people believe that setting a blanket penalty of 100,000 yuan shows that legislators only want to ban trademark rights holders or licensees who directly use relevant trademarks, and the targets of punishment do not include sellers and service providers who resell or use related goods. . The reason is that when sellers and service providers use well-known trademarks to promote related products that they resell or use, the amount involved may only be a few hundred or several thousand yuan, and it is too unfair to impose a blanket fine of 100,000 yuan on them.

In commercial activities, there are two main situations where the words "well-known trademark" are used actively, proactively and directly: First, manufacturers and other producers and operators use "well-known trademark" in commercial activities The words "well-known trademark" are used to introduce one's own trademarks, goods or services; secondly, sellers and service providers in shopping malls, supermarkets and other places actively use the words "well-known trademark" to introduce themselves for resale in advertising, store signs, store notices and other commercial activities. Or use goods produced by others and trademarks of others. Whether from the perspective of the literal meaning of Article 14, Paragraph 5 of the Trademark Law, or from the perspective of legislative intent, the above two types of direct, active and proactive use of the words "well-known trademark" in commercial activities are both It should be within the scope of the ban.

According to reports, many sellers have been fined 100,000 yuan in accordance with Article 53 of the Trademark Law for using the words "well-known trademark" in commercial activities. For example, Beijing Carrefour Commercial Co., Ltd. used the slogan "Sanyuan adheres to good quality - China's well-known trademark" on the escalators on the second and third floors of its Xiangqiao store. The Chaoyang Branch of the Beijing Municipal Administration for Industry and Commerce fined the company in September 2015. 100,000 yuan. For another example, Guangzhou Vipshop Information Technology Co., Ltd. sells "FLYCO fashionable and cool smart shavers" through its Vipshop website. When promoting the product's "brand story", it released "'FLYCO' "It is the first 'China Famous Trademark' in the shaver industry" and other promotional content, the Guangzhou Municipal Administration of Industry and Commerce fined the company 100,000 yuan in May 2015. For another example, when a certain Tmall online store sold a certain brand of laundry detergent, it marked the word "well-known trademark" on the promotional webpage since February 28, 2015. The Yuhang District Market Supervision Bureau of Hangzhou City fined the online store 100,000 yuan in accordance with the law. fine.

Of course, when a small store uses the words "well-known trademark" on the store notice board to introduce its in-store products, when a small factory uses the words "well-known trademark" to introduce its products through product packaging or accompanying leaflets, the impact is small. , the amount involved in the case is small, and imposing a blanket fine of 100,000 yuan on them is indeed unfair and inappropriate. This is a legislative flaw that requires the legislative body to fill the loopholes, or for law enforcement agencies to take the path of mitigating penalties in accordance with the law when enforcing individual cases.

Enterprise websites may publish advertising information or non-advertising information. In response to relevant inquiries from netizens, the website of the State Administration for Industry and Commerce believes that whether the labeling of "well-known trademarks" on corporate websites violates the provisions of Article 14, Paragraph 5 of the "Trademark Law" depends on whether its use belongs to advertising and commercial use. category. Personally, I think it is reasonable for an enterprise to use its website to introduce its cases of seeking protection for well-known trademarks in an independent article. As long as there is no information to promote its goods or services, it should not be considered as "used in commercial activities". The words "well-known trademark" are not within the scope of inspection and ban.

2. Is displaying and displaying goods in shopping malls and supermarkets a form of advertising?

Many people believe that judging from the wording of the provisions of the Trademark Law, what is referred to in Paragraph 5 of Article 14 "Use the word 'well-known trademark' for", the same as the "use" mentioned in Article 57 (1) and (2), should be direct, active and active use. However, shopping malls and supermarkets that display, display, and resell goods marked with the words "well-known trademark" on the packaging by the manufacturers do not directly, actively, and proactively use the words "well-known trademark". Therefore, they do not fall under Article 10 of the Trademark Law. The scope of prohibition in Article 4, Paragraph 5.

However, some people believe that displaying and displaying goods is a form of advertising. Sellers in shopping malls, supermarkets and other service providers display and display goods whose manufacturers have marked "well-known trademarks" on the packaging. , which falls under the prohibition of using the words "well-known trademark" in advertising and publicity under Article 14, Paragraph 5 of the Trademark Law. Some people even believe that only fining manufacturers 100,000 yuan without punishing retailers is not enough to produce a sanction effect. It only allows manufacturers to pay an additional 100,000 yuan in advertising fees each time, and the benefits will outweigh the costs of violating the law. If administrative penalties are imposed on retailers, retailers can force manufacturers to no longer use the words "well-known trademark" on goods or their packaging containers. This article believes that the behavior of sellers and other service providers in displaying and displaying goods marked with "well-known trademarks" should indeed be regulated, but Article 53 of the Trademark Law should not impose a blanket fine of 100,000 yuan. Reasonable.

The "Notice on Issues Concerning the Implementation of the Revised (Trademark Law of the People's Republic of China and the People's Republic of China)" issued by the State Administration for Industry and Commerce on April 15, 2014 (Industrial Trademark Zi [2014] No. 81), For the use of the words "well-known trademark" on goods, product packaging or containers, it is clearly stipulated: "The holder of a well-known trademark shall bear illegal liability and shall be investigated and dealt with by the industrial and commercial administration department of his place of residence. The industrial and commercial administration departments outside his place of residence shall If the department discovers the above-mentioned illegal acts, it will be transferred to the industrial and commercial administrative department of the place of residence for investigation and punishment. If the place of domicile is not within the territory of China or there is a dispute over jurisdiction, the industrial and commercial administrative department designated by the State Administration for Industry and Commerce will investigate and deal with it. "However, the manufacturer shall be investigated and dealt with. For sellers in shopping malls and supermarkets who display products with the words "well-known trademark" on the packaging, the Industrial Trademark Zi [2014] No. 81 document neither clarifies that they should bear illegal liability nor explicitly excludes them. Until laws, administrative regulations and the State Administration for Industry and Commerce make clear definitions, grassroots industrial and commercial authorities will have different views and practices. Although no similar cases have been investigated and dealt with by industrial and commercial authorities, it cannot be ruled out that there will be such cases in the future.

In addition, the statement in Industrial Trademark Zi [2014] No. 81 document that "the holder of a well-known trademark shall bear legal liability" is not accurate enough. Because the person who uses the words "well-known trademark" on goods, product packaging or containers may be a trademark owner who has been protected by a well-known trademark case, or he may be a trademark holder who has never been protected by a well-known trademark case. It is also possible that the licensee of the trademark involved in the case, or even the seller or service provider, may mark the words "well-known trademark" on product packaging or containers for promotional purposes. In the latter three types of situations, it is obviously inaccurate or unreasonable to state that "the holder of a well-known trademark bears legal liability".

3. Whether the "Advertising Law" applies to the use of the words "well-known trademark" in advertisements

Item (11) of Article 9 of the new "Advertising Law", It is required that advertisements must not contain other situations prohibited by laws and administrative regulations. Article 57 of the Law authorizes the industrial and commercial administrative department to "order the publication of advertisements to stop publishing advertisements and impose a fine of not less than 200,000 yuan but not more than 1 million yuan on the advertiser, if the circumstances are serious," and the business license may be revoked, and the advertising review authority shall revoke the advertising review approval document and not accept its advertising review application within one year; for advertising operators and advertising publishers, the industrial and commercial administrative department shall confiscate advertising fees and impose a fine of 200,000 yuan If the circumstances are serious, the business license and advertising registration certificate may be revoked."

Therefore, the use of the words "well-known trademark" in commercial advertisements falls within the prohibition scope of Article 14, Paragraph 5 and Article 53 of the Trademark Law, and also falls within the scope of the new Advertising The scope of prohibition in Article 9, Item (11) and Article 57 of the Law is a cross-competition violation. In law enforcement practice, you can choose to apply the Trademark Law or the Advertising Law. However, the administrative penalties set out in Article 57 of the new Advertising Law are obviously more severe than those in Article 53 of the Trademark Law. Therefore, grassroots industrial and commercial authorities are more strict with the use of the words "well-known trademark" in commercial advertisements. The Advertising Law may apply for investigation and punishment.

4. Whether claiming a “well-known trademark” without being legally recognized as a well-known trademark constitutes false publicity or false advertising

Before the new Trademark Law takes effect, operators who have not If a trademark that is recognized as a well-known trademark in accordance with the law falsely claims to be a well-known trademark, or if the word "well-known trademark" is used for publicity beyond the scope of goods recognized as a well-known trademark, the grassroots industrial and commercial authorities generally rely on Articles 9 and 24 of the Anti-Unfair Competition Law. If it is determined to be misleading false advertising according to the Article, a fine of not less than 10,000 yuan but not more than 200,000 yuan will be imposed; or if it is determined to be false advertising in accordance with the "Advertising Law", a fine will be imposed at a multiple of the advertising cost.

After the new Trademark Law comes into effect, such behavior not only violates Article 14, Paragraph 5 of the Trademark Law, constituting a trademark violation, but also constitutes false publicity or false advertising, and is an illegal act of imaginary competition. Penalties can be imposed not only under the Trademark Law, but also under the Anti-Unfair Competition Law or the Advertising Law. In practice, grassroots industrial and commercial authorities are more likely to apply the Anti-Unfair Competition Law or the Advertising Law to investigate and deal with such illegal activities. Because the "Anti-Unfair Competition Law" and the "Advertising Law" have higher penalties for false propaganda and false advertising and are easier to operate. In particular, Article 55 of the new "Advertising Law" significantly increases the penalty for publishing false advertisements to: "A fine of not less than three times but not more than five times of the advertising fee. If the advertising fee cannot be calculated or is obviously low, a fine of two times or more shall be imposed." A fine of not less than RMB 100,000 but not more than RMB 1 million; if there are three or more illegal acts within two years or there are other serious circumstances, a fine of not less than five times but not more than ten times the advertising fee will be imposed; if the advertising fee cannot be calculated or is obviously low, a fine of not less than five times but not more than ten times the advertising fee will be imposed. A fine of not less than one million yuan but not more than two million yuan..."

Of course, although some trademarks have not yet been protected as well-known trademark cases, they are indeed widely known to the public in our country. In this case, using the words "well-known trademark" for commercial promotion violates Article 14, Paragraph 5 of the Trademark Law, which constitutes a trademark violation, but does not constitute false publicity or false advertising.