Trademark infringement refers to violations of the law and the unauthorized use of logos that are identical or similar to a registered trademark on identical or similar goods or services without the consent of the trademark owner, thereby damaging the legitimate rights and interests of the trademark owner. . Judging from the provisions of my country’s Trademark Law, the constitution of trademark infringement usually includes the following elements:
First, the infringement has caused damage or is about to cause damage to the trademark owner, that is, the infringement has caused damage to the trademark owner or is about to cause damage. , which can be manifested as a decrease in product sales, a decrease in profits or a decrease in trademark reputation, etc.
The second is the illegality of the behavior, that is, the perpetrator objectively exercises the rights enjoyed by the trademark owner in accordance with the law without permission and without other legal basis.
Third, the damage consequences are causally related to the illegal behavior, that is, the damage consequences are directly caused by the illegal behavior.
The fourth is the subjective state, including fault and no fault.
Generally, if an actor illegally uses a trademark that is the same as or similar to a registered trademark, forges or creates without authorization the logo of another person’s registered trademark, or reversely counterfeits a registered trademark, the act will be used when determining whether it is an infringement. The subjective fault of the person is an essential element; as for the act of selling goods with counterfeit registered trademarks, the subjective fault of the perpetrator is not an essential element when determining whether the infringement is infringement.
About the circumstances under which trademark infringement lawsuits may be filed. my country's Trademark Law stipulates that the trademark registrant or interested party may file a lawsuit with the People's Court under the following circumstances of infringement:
1. Use on the same or similar goods without the permission of the right holder Trademarks that are identical or similar to the registered trademark;
2. Selling goods that infringe the exclusive rights of the right holder’s registered trademark;
3. Counterfeiting or unauthorized manufacturing of the right holder’s registered trademark logo or selling counterfeit , Create the right holder's registered trademark without authorization;
4. Replace the registered trademark without the right holder's consent and put the goods with the changed trademark into the market;
5. Give the rights Other losses caused by the person’s exclusive right to register a trademark. How to punish trademark infringement
For those who infringe on the exclusive right to register a trademark, according to Article 53 of the Trademark Law and Article 43 of the Implementing Rules of the Trademark Law, the industrial and commercial administrative authorities may Take the following measures to impose penalties.
(1) Order to stop infringement
The specific measures are as follows:
①Order to stop sales immediately;
②Confiscate and destroy the infringing goods ;
③ Confiscate and destroy tools specifically used to manufacture infringing goods and forge registered trademarks.
(2) Imposition of fines
For those who infringe the exclusive rights of registered trademarks but have not yet constituted a crime, the industrial and commercial administration authorities may impose a fine of less than 50% of the illegal business revenue or the profits obtained from the infringement according to the circumstances. A fine of not more than five times; the person directly responsible for the infringement unit may be fined not more than 10,000 yuan according to the circumstances.
If the party concerned is dissatisfied with the above two treatments, the party concerned may file a lawsuit in the 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 industrial and commercial administration authority shall apply to the People's Court for compulsory enforcement.
(3) Mediation on the amount of compensation for infringement of trademark exclusive rights
The industrial and commercial administrative department that handles the case may mediate on the amount of compensation for infringement of trademark exclusive rights at the request of the party concerned , if mediation fails, the parties may file a lawsuit in the People's Court in accordance with the law.
The full text on the conditions that constitute trademark infringement and how to punish trademark infringement has been completed. If your normal business activities are found to be trademark infringement, you must actively protect your own interests and not passively resist. If you encounter such a situation, you can entrust a professional intellectual property lawyer to help you protect your rights. What is the general amount of compensation for trademark infringement?
In order to reflect that damages should be sufficient to compensate for the losses suffered by the trademark owner due to infringement, the "Trademark Law" increases the amount of compensation for infringement of exclusive rights to trademarks, providing the infringer with a The benefits obtained by the infringement during the infringement period or the losses suffered by the infringed party due to the infringement during the infringement period include the reasonable expenses paid by the infringed party to stop the infringement?
If the benefits and losses are difficult to determine, the court will award a compensation of less than 500,000 yuan based on the circumstances of the trademark infringement. What are the conditions for registering a trademark?
(1) Distinctiveness of the trademark
The distinctiveness of a trademark lies in whether the trademark is newly created and whether it has personality. A unique and newly created trademark undoubtedly has distinctive features. A trademark should have distinctive features so that it can be easily distinguished from others. A comprehensive examination should be conducted from the text, graphics and other components of the trademark itself. Overly simple graphics, lines, or overly complex patterns, ordinary numbers, general daily life terms or advertising terms, common names of goods, packaging, decoration, containers, etc. of goods are generally considered not to have distinctive features. For example, if an arc is used as a mark to apply for registration on cosmetics and other commodities in categories 3, 9, 18, 24, 25, and 28, it will be regarded as lacking distinctiveness and being difficult to consume. The registration was not approved on the grounds of identification of the person; another example of a combination trademark with pines, cypresses, flowers, sun, cranes, flowing water, and rocks as the background pattern, and the name "Songs and Cranes Welcome Spring" was requested to be registered on a certain daily necessities, but it was also not approved. The reason for registration is that "songs and cranes welcome spring" is an auspicious term among the people and is often used on daily necessities. The pattern is also often used on daily necessities as a decorative pattern. The trademark does not contain any text or graphics. It has distinctive characteristics and does not have an identification function.
The purpose of requiring trademarks to have distinctive features is to enable consumers to identify the source of goods through trademarks. Even if some trademarks lack distinctive features, their long-term use can still be used to identify them. Once registered, protection should be provided. For example, if simple graphics such as triangles and semicircles are associated with a specific product and used repeatedly, so that they have an identification function, they should also be protected. Another example is the world-famous "NIKE" trademark used on sportswear and sneakers. The pattern of a wave of a pen is so simple that it is almost unrecognizable from the perspective of its constituent elements, but it couldn't be simpler. A single stroke has the strongest identifying effect. Therefore, the distinctive features of a trademark must be judged and identified from the perspective of whether the trademark has been actually used and whether it has formed a specific connection with a certain product.
(2) Trademarks must not be confused with others’ trademarks
Confusion refers to situations where a trademark is identical or similar to another’s trademark. Generally speaking, the aforementioned original trademarks will not be confused with other people’s trademarks, while suggestive trademarks, descriptive trademarks, especially borrowed meaning trademarks are often confused with other people’s trademarks, and the trademark applied for registration will not be confused with other people’s trademarks. If the trademarks are mixed, they will not be allowed to be registered. If the same or similar trademark is used on the same or similar goods, it will constitute infringement.
Identical trademarks means that the words and graphics of the trademarks used on the same product or similar products are exactly the same or the pronunciation of the trademark name is exactly the same. If the trademarks are the same, it will be difficult for consumers to distinguish the goods or services of different operators.
Trademark similarity means that the words, graphics or name pronunciation of trademarks used on the same or similar goods are basically the same. Although there is a difference, the difference is not obvious enough to cause consumers to misunderstand and purchase. For example, someone applied for the designated use of "surname" on ice cream and popsicles in Class 30, which is similar to the "Wahaha" trademark registered by Hangzhou Wahaha Group for designated use on Class 30 ice products. Although the two trademarks ?Surname Haha? and ?Wahaha? have different characters and different pronunciations, their glyphs are very similar. ?What’s your surname? Just slightly changed each word of ?Wahaha?, and deliberately made it closer to ?Wahaha?, taking advantage of consumers’ trust in the Wahaha trademark, causing consumers to misunderstand, leading to misunderstandings. purchase. Similarity of trademarks mainly manifests itself in three situations: shape (appearance), phonetic (pronunciation), and meaning (meaning). By comparing two trademarks, if their shape, phonetic, and meaning are similar, Similar trademarks that are likely to confuse consumers are considered similar trademarks.
Whether the trademarks are identical or similar, they must be identical or similar on the same goods or similar goods. Therefore, in addition to judging whether the trademarks themselves are the same or similar, it is also necessary to judge whether the goods they use are the same. Goods or similar goods, if the goods used are not the same goods or similar goods, even if the two trademarks are the same or similar, it does not affect their distinctiveness and recognizability. The so-called same product refers to products that are similar in performance, use, production process, main raw materials, etc.
It is not difficult to determine whether they are the same product, but it is more complicated to determine whether they are similar products. Because in addition to comprehensively considering whether the manufacturing department, raw materials, quality, usage, and even the sales department of the product are consistent, it is also necessary to examine the consumer psychology. Moreover, different standards may also be grasped for different trademarks. For a trademark that has a certain degree of popularity among consumers, as long as it may cause consumers to misunderstand the source of the goods, goods that are not similar from a commodity point of view will also be judged as similar goods. For example, an enterprise applied for registration on pastries and oatmeal in Class 30 with the exact same logo as "Carlsberg" registered by Carlsberg Ltd. on Class 32 beer. The rejection of the application for an identical trademark on similar goods shows that similar goods are relative.
The above is the real estate trademark infringement provided by the editor. I hope you will like it!