There is a trademark infringement by a real estate agent. How can we protect our rights and interests? I'll share it with you. Welcome to read it, for reference only!
what is trademark infringement
trademark infringement refers to the act of using the same or similar logo as a registered trademark without the consent of the trademark owner in violation of the provisions of the law, which damages the legitimate rights and interests of the trademark owner. Judging from the provisions of China's trademark law, the composition of trademark infringement usually includes the following elements:
First, it has caused or is about to cause damage, that is, the infringement has caused or is about to cause damage to the trademark owner, which can be manifested as a decline in product sales, a decrease in interests or a decrease in trademark reputation.
the second is the illegality of the act, that is, the actor objectively exercises the rights enjoyed by the trademark owner according to law without permission and without other legal basis.
thirdly, there is a causal relationship between the damage consequence and the illegal act, that is, the damage consequence is directly caused by the illegal act.
the fourth is subjective state, including fault and no fault.
under normal circumstances, if an actor illegally uses a trademark that is the same as or similar to a registered trademark, forges or makes the logo of another person's registered trademark without authorization, and acts of reverse counterfeiting a registered trademark, the subjective fault of the actor shall be taken as an important element when determining whether there is infringement; For the act of selling goods with counterfeit registered trademarks, the subjective fault of the actor is not the key element when determining whether there is infringement.
About the circumstances in which trademark infringement litigation can be brought. China's trademark law stipulates that a trademark registrant or interested party may bring a lawsuit to the people's court in the following cases of infringement:
1. Using a trademark identical with or similar to its registered trademark on the same commodity or similar commodity without the permission of the obligee;
2. selling goods that infringe the exclusive right of the obligee to use a registered trademark;
3. Forge or make the registered trademark logo of the obligee without authorization or sell the forged or made registered trademark logo of the obligee without authorization;
4. Without the consent of the obligee, change its registered trademark and put the goods with the changed trademark on the market;
5. causing other losses to the obligee's exclusive right to use a registered trademark.
how to punish trademark infringement
for infringement of the exclusive right to use a registered trademark, according to Article 53 of the Trademark Law and Article 43 of the Detailed Rules for the Implementation of the Trademark Law, the administrative department for industry and commerce may take the following measures to punish it.
***1*** Order to stop the infringement
The specific measures are as follows:
① Order to stop the sales immediately;
② confiscation and destruction of infringing goods;
③ Confiscate and destroy tools specially used for manufacturing infringing goods and forging registered trademarks.
***2*** * Penalty * *
If the infringement of the exclusive right to use a registered trademark has not yet constituted a crime, the administrative department for industry and commerce may, according to the circumstances, impose a penalty of * * * which is less than 5% of the illegal business amount or less than five times the profit from the infringement; The person who is directly responsible for the infringing unit may be sentenced to less than 1, yuan according to the circumstances.
if the parties are dissatisfied with the above two treatments, they may bring a suit in a people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice. If neither prosecution nor performance is made within the time limit, the administrative department for industry and commerce shall apply to the people's court for compulsory execution.
***3*** Mediation on the amount of compensation for infringement of the exclusive right to use a trademark
The administrative department for industry and commerce that handles the matter may mediate on the amount of compensation for infringement of the exclusive right to use a trademark at the request of the parties. If mediation fails, the parties may bring a lawsuit to the people's court according to law.
The full text of what constitutes trademark infringement and how to punish trademark infringement has ended. If your normal business activities are identified as trademark infringement, you should actively safeguard your own interests and not passively resist. You are in such a situation, you can entrust a professional intellectual property lawyer to help you.
What is the general amount of compensation for trademark infringement?
In order to show that damages should be enough to make up for the losses suffered by the trademark owner due to infringement, the Trademark Law increases the amount of compensation for the exclusive right to use an infringing trademark, which is the benefit obtained by the infringer during the infringement period or the loss suffered by the infringed person during the infringement period, including the reasonable expenses paid by the infringed person to stop the infringement. If it is difficult to determine the benefits and losses, the court shall award compensation of less than 5, yuan according to the circumstances of trademark infringement.
what are the conditions for registering a trademark?
the distinctiveness of * * * a * * * trademark
The distinctiveness of a trademark lies in whether the trademark is new or not and whether it has its own personality. Individualized and newly-created trademarks are undoubtedly distinctive. Trademarks should have distinctive features, so as to facilitate the distinction. We should make a comprehensive investigation from the aspects of the characters, figures and other components of the trademarks themselves. Too simple graphics, lines, or too complicated patterns, ordinary numbers, common daily life terms or advertising language, common names of commodities, packaging, decoration, containers, etc. of commodities are generally considered to have no obvious characteristics. For example, an application for registration on cosmetics and other commodities with an arc as a symbol is not approved for lack of distinctiveness and is not easy to be recognized by consumers; Another example, with pine and cypress, flowers, sun, crane, flowing water and rocks as the background pattern, with the name of "Songhe Yingchun" requested to be registered on a commodity, which was also not approved for registration. The reason is that "Songhe Yingchun" is an auspicious term established by the people, and it is often used in daily necessities. As a decorative pattern, it is also often used in daily necessities.
trademarks are required to have distinctive features, with the purpose of enabling consumers to identify the source of goods through trademarks. Some trademarks, even though their constituent elements lack distinctive features, can also be registered because of their long-term use, and should be protected. For example, some simple figures such as triangles and semicircles should be associated with a specific commodity and used repeatedly to make them have the identification function, which should also be protected. For another example, the world-renowned "NIKE" trademark used in sportswear and sports shoes, with a stroke of a pen, is hardly recognizable in terms of its constituent elements, but this simple stroke has the strongest recognition function. Therefore, the distinctive features of a trademark should be judged and identified from the perspective of whether the trademark has actually been used or not and whether it has formed a specific contact with a certain commodity.
*** two * * trademarks must not be confused with others' trademarks
Confusion refers to two situations in which trademarks are the same as or similar to others' trademarks. Generally speaking, the original trademarks mentioned above will not be confused with other people's trademarks, while suggestive trademarks, descriptive trademarks, especially borrowed trademarks will often be confused with other people's trademarks. If the trademark applied for registration is confused with other people's registered trademarks, it will not be allowed to register, but it will constitute infringement to use the same or similar trademarks on the same or similar goods.
Trademark identity means that the characters and graphics of trademarks used in the same commodity or similar commodities are exactly the same or the pronunciation of trademark names is exactly the same. It is difficult for consumers with the same trademark to distinguish the goods or services of different operators.
Trademark approximation means that the words, figures or names of trademarks used in the same commodity or similar commodities are basically the same pronunciation. Although there are differences, the differences are not obvious enough to make consumers mistake for buying by mistake. For example, someone designated the application for "surname" to be used on the 3th category of ice cream and popsicle, which is similar to the "Wahaha" trademark registered by Hangzhou Wahaha Group and designated for use on the 3th category of ice products. Although the two trademarks of "surname" and "wahaha" have different pronunciations, their glyphs are very similar. "What's the surname" only slightly changes every word of "Wahaha", deliberately bringing it closer to "Wahaha" and taking advantage of consumers' trust in Wahaha trademarks, making consumers misunderstand and lead to mistaken purchases. Trademark approximation is mainly manifested in three situations: "shape" * * * appearance * * *, "sound" * * * pronunciation * * *, and "meaning" * * *. By comparing two trademarks, if their "shape", "sound" and "meaning" are similar, it is called approximation.
No matter whether the trademarks are identical or similar, they must be identical or similar on the same commodity or similar goods. Therefore, besides judging whether the trademarks are identical or similar, it is also necessary to judge whether the goods they use are the same commodity or similar goods. If the goods used are not the same commodity or similar goods, even if the two trademarks are identical or similar, it will not affect their distinctiveness and identifiability. The so-called same commodity refers to commodities with similar efficacy, use, production technology and main raw materials.
it is not difficult to judge whether it is the same commodity, but it is more complicated to judge whether it is a similar commodity. Because in addition to considering the consistency of the manufacturing department, raw materials, quality, use and even the sales department, it is necessary to examine from the psychological aspect of consumption. And it is also possible to master different scales for different trademarks. For a trademark with a certain popularity among consumers, as long as it may lead to consumers' misunderstanding of the source of the goods, then the goods that are not similar from the perspective of commodity science will be judged as similar goods. For example, an enterprise applies for registration on the 3th category of cakes and oatmeal with the same logo as Carlsberg Co., Ltd.' s Carlsberg registered on the 32nd category of beer. The application was rejected because it was judged to be the same trademark on similar goods, which shows that similar goods are relative.
that's all I have for you. I hope you like it!
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