The mouse sold by the defendant is a product produced by the manufacturer that infringes on the exclusive rights of others' registered trademarks. The sales behavior is also an infringement, according to the provisions of my country's "Trademark Law"

Article 52 Item 2: Selling goods that infringe upon the exclusive right to use a registered trademark shall constitute an infringement of the exclusive right to use a registered trademark. But because you are just a seller, and you may not know that the other party's production has constituted infringement when you purchase the goods.

Article 56, paragraph 3, stipulates: If you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you obtained the goods legally and explain the supplier, you will not be liable for compensation. According to this provision, although your sales behavior constitutes an infringement of the exclusive rights of others' registered trademarks, you are not legally liable for compensation and you only need to stop sales.

To be exempted from liability under this article, you need to be able to prove that you did not know that the property rights you sold were infringing products at the time of sale; at the same time, you must also prove that you obtained the goods through legal channels and be able to explain the supply of the goods. who.

Extended information:

As of the end of 2017, the cumulative number of trademark applications in my country was 27.842 million, and the number of valid registered trademarks was 14.92 million. In 2017 alone, the number of trademark registration applications reached 5.748 million .

The average number of valid trademarks per 10,000 market entities in my country is 1,520. Trademark registration certificates are not only the brands operated by enterprises, but also the exclusive rights to trademarks they possess should be effectively protected. In daily operations, Suspected infringements discovered should be taken seriously and the most appropriate methods should be adopted to safeguard their rights.

How to define trademark infringement

Article 57 of the current Trademark Law lists seven trademark infringement situations, which is the core legal application standard in determining trademark infringement. Relevant legal provisions also include Article 59 concerning the defense of non-infringement, Article 63 concerning the amount of compensation for infringement, Article 64 regarding circumstances in which liability for infringement compensation is not borne, etc. In trademark infringement cases, they basically revolve around the above. Trial required by law.

At the same time, the Supreme People's Court also issued the "Interpretations of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes over Trademark Cases" and "The Supreme People's Court's Interpretations on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving the Protection of Well-known Trademarks" "Interpretation" and "Opinions of the Supreme People's Court on Several Issues Concerning Intellectual Property Trials Serving the Overall Situation under the Current Economic Situation".

The Beijing Higher People’s Court issued the “Beijing Higher People’s Court’s Answers to Several Issues Concerning the Trial of Trademark Civil Dispute Cases”. Corresponding legal provisions, judicial interpretations or opinions may be applied in different cases.

Whether the trademarks are identical or similar, and whether the goods or services are identical or similar, so that there is a possibility of confusion, is the focus of trademark infringement cases, including the same trademark on the same goods or services.

A similar trademark on the same goods or services, the same trademark on similar goods or services, or a similar trademark on similar goods or services. The "similar" here refers to the functional use, consumer group, and sales of the goods or services. There is convergence in channels, service methods, etc. “similarity” refers to the similarity in pronunciation, shape and meaning of the logo.

Of course, except for the situation where the same trademark on the same goods or services constitutes infringement as stipulated in Article 57, Paragraph 1 of the Trademark Law.

Whether a similar trademark on the same or similar goods or services constitutes infringement or whether a similar trademark on similar goods or services constitutes infringement must be based on the likelihood of confusion as the final criterion. In this case, the rights holder needs to combine The court or the trademark administrative department will make a ruling after providing evidence on the similarity of the logo, the manner in which the accused infringing logo is used, and whether the defendant has malicious intent.

In line with the principle of who claims and who provides evidence, the right holder needs to provide evidence to support the amount of compensation due to infringement in accordance with the provisions of Article 63 of the Trademark Law. However, years of practice have proven that infringement Proving the amount of compensation is one of the difficulties in safeguarding rights.

The right holder needs to prove the actual losses suffered due to the infringement or the benefits obtained by the infringer due to the infringement or a reasonable multiple of the trademark license fee.

If it is difficult to determine the above circumstances, the People’s Court shall make a discretionary decision based on the circumstances of the infringement and the amount shall be less than 3 million yuan. In practice, the right holder here needs to try his best to prove the usage time and popularity of the right trademark, the fact of the loss of market share due to infringement, the infringer’s online sales due to the infringement, the release of sales information, and the profits of the goods or services in the industry involved. composition, etc., this part requires the cooperation of the rights holders concerned.

Of course, the amount of infringement compensation includes the reasonable expenses paid by the right holder to stop the infringement. The reasonable expenses such as attorney fees, notary fees, litigation fees and other reasonable expenses incurred by the right holder when safeguarding their rights are actually paid in advance and will not be determined until the infringement is determined. When established, the above expenses will be ordered by the court to be paid by the defendant.

Although this is not a relationship of "invest first and then output", it should be the backing for rights holders to dare to defend their rights when their legal rights are harmed, and it is the guarantee given by the law to rights holders to legally defend their rights.

How to respond to infringement litigation

In practice, many parties, as defendants, choose to respond to the lawsuit by inaction after receiving the complaint and related materials issued by the court. However, as a national judicial organ, the court's actions have the characteristics of public power. Even if the defendant does not respond, it will still make a judgment that is directly related to the defendant in accordance with the principle of absentee trial in the Civil Procedure Law, and its judgment has public trust and enforceability.

Documents and information from the court cannot be solved by ignoring them. Therefore, the parties concerned should get in touch with the court and prepare relevant documents according to the notice of response. Actively responding to the lawsuit is the first step to resolve the lawsuit.

Through the complaint and evidence materials forwarded by the court, we can basically understand the focus issues of the case such as the specific infringement behavior of the defendant sued by the plaintiff, the legal provisions involved, and the amount of compensation requested by the court to order the defendant.

Defenses need to be prepared for different focus issues, which are divided into the following three types:

1. Non-infringement defense. Article 59 of the Trademark Law stipulates three non-infringement situations:

First, the registered trademark contains the common name, graphics, etc. of the product and directly indicates the quality of the product, etc. or the place name contained therein. The trademark owner has no right to prohibit others from legitimate use;

The second is the shape resulting from the nature of the goods themselves contained in the three-dimensional mark registered trademark, the shape of the goods required to obtain technical effects, or making the goods substantive The owner of the exclusive right to a registered trademark has no right to prohibit others from using it properly;

The third is that before the date of application for the registered trademark, others have used the same or similar trademark on the same or similar goods and have had a certain impact. The owner of the exclusive right to a registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use, but can require the user to attach appropriate distinguishing marks. Whether it is applicable depends on the specific circumstances of the case.

2. Defense of non-compensation for infringement. According to Article 64 of the Trademark Law, if the holder of the exclusive right to a registered trademark cannot prove that the registered trademark has actually been used within the previous three years, nor can he prove that he has suffered other losses due to infringement, he shall not be liable for compensation; If the seller of an infringing product does not know that it is an infringing product, he will not be liable for compensation if he can prove that he obtained the product legally and identify the supplier.

3. There is no basis for defense against compensation. According to Article 63 of the Trademark Law, the amount of compensation for infringement is calculated according to a certain standard order of compensation calculation. According to this provision, the defendant can rely on whether the plaintiff can submit evidence to prove the actual losses suffered due to the infringement and the gains made by the infringer due to the infringement. The plaintiff’s defense that the amount of compensation has no factual and legal basis in terms of interests, trademark license fees, etc.

Litigation is often considered the last way to resolve disputes. However, in practice, the plaintiff’s choice of litigation method may not only be a matter of disputes in one case. In the face of litigation disputes, they can choose to follow the court’s arrangements and enforce the judgment after trial. Of course, you can also choose the most advantageous solution based on the specific circumstances of the case.

If you communicate with the plaintiff and reach mediation, withdraw the lawsuit with the consent of the court, reduce your own litigation burden, or sign a mediation letter through the court, it will not only reduce the liability accordingly, but also gain credibility. If the intervention of litigation leads to more positive business cooperation opportunities with the other party, that can be regarded as a gain.

People's Daily Online - How should companies respond to being accused of trademark infringement?

Baidu Encyclopedia-Trademark Law of the People's Republic of China