According to the law, other people’s registered trademarks must not be used. How to use other people’s registered trademarks legitimately and in good faith? Chinese enterprises will inevitably encounter such troublesome problems in practice. In fact, my country's relevant laws and regulations have made corresponding provisions for legitimate and good-faith use. That is to say, as long as it does not infringe the trademark rights of others, you can use it when you should.

Although there are no express provisions on restrictions on trademark rights in my country's current trademark law, on September 15, 2002, the "Regulations on the Implementation of the Trademark Law of the People's Republic of China" promulgated by the State Council clearly stated that The provisions of "fair and good faith use of trademarks" have been adopted. Article 49 of the Regulations stipulates: “If a registered trademark contains the common name, graphics, or model of the product, or directly indicates the quality, main raw materials, functions, uses, weight, quantity, or other characteristics of the product, or contains a place name, the registered trademark shall The owner of the exclusive right to a trademark has no right to prohibit others from using it properly." Article 54 stipulates: “A service mark that has been continuously used until July 1, 1993, that is identical or similar to a service mark that has been registered by others for the same or similar services may continue to be used; however, as of July 1993 If the use is interrupted for more than 3 years after the 1st, it shall not be continued to be used.” Article 6 stipulates: "If a geographical indication is registered as a certification mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request to use the certification mark, and the organization that controls the certification mark shall allow it. To use a geographical indication as a certification mark If a collective trademark is registered, a natural person, legal person, or other organization whose products meet the conditions for using the geographical indication may request to join a group, association, or other organization that uses the geographical indication as a collective trademark. The group, association, or other organization shall, in accordance with its Those who are admitted as members by the articles of association; and are not required to participate in a group, association or other organization that registers the geographical indication as a collective trademark, may also use the geographical indication legitimately, and the group, association or other organization has no right to prohibit it."

The above-mentioned legal provisions on the legitimate and bona fide use of trademarks can be summarized into four different methods: narrative use, illustrative use, indicative use and prior use rights:

1. Narrative use

In order to provide the public with basic information about goods and services, use your own name (font size, abbreviation), address, name of the place of origin of the goods, geographical indications, and the name of the goods in good faith. Common names, etc., are all narrative uses of trademarks and do not constitute an infringement of other people's trademark rights. Of course, this use must not have the effect of misleading the public. Before our country's laws stipulated that "fair and bona fide use of trademarks" was not illegal, in legal practice, in many cases, the above-mentioned uses were considered trademark infringements. For example, in 1999, the Nanjing Intermediate People's Court made a judgment that the defendants Quanxing Club and Nanjing Sports Equipment Factory had designed, promoted, produced, and sold Quanxing portrait balls, signature balls, and other footballs and basketballs with the word "Quanxing" on them. , "Sichuan Quanxing Football Club" and other words constitute infringement of the registered trademarks "Quanxing" and "Quanxing and Pictures" of the plaintiff Tianjin Quanxing Factory (on sports ball products). Fortunately, the Higher People's Court of Jiangsu Province changed the sentence in accordance with the law after the second instance. The court of second instance held that the "Quanxing" brand name of Quanxing Club originated from the "Quanxing" time-honored brand name of Quanxing Winery in Chengdu, Sichuan. In order to promote and identify itself, Quanxing Club, as a commercial entity, marks and uses its well-known name on its team emblem, team uniforms, commemorative albums, envelopes, letterheads, and products related to its business such as sports balls. This is not prohibited by law. prohibit. As civil rights, trade name rights and trademark rights are equal and independent of each other, and there is no distinction between strength and weakness. Therefore, the actions of the two defendants in the first instance did not constitute trademark infringement. Today, measured by the "trademark legitimate and bona fide use system", the behavior of the two defendants is clearly a legitimate and reasonable use of their "corporate name" and "corporate trade name".

2. Illustrative use

In order to introduce to the public a specific situation of the goods you produce and operate or the services you provide, such as the model, quality, main raw materials, functions, and uses of the product , weight, quantity and other characteristics, the use of another person's registered trademark is illustrative use. Of course, in order to avoid confusion with the trademark owner’s goods or services, users usually need to add descriptive words such as “main ingredients”, “basic functions”, “how to use” and “implementation standards” before the trademark.

The State Administration for Industry and Commerce once asked Jiangsu Tianbao Pharmaceutical Co., Ltd. whether the use of explanatory words such as "Trimonad + Chinese herbal medicine" on the packaging of its "Biqi Tianbao Oral Liquid" product constituted an infringement of the "Sanzhu" registered trademark. Approval on infringement issues: Jiangsu Tianbao Pharmaceutical Co., Ltd. uses words such as "Trimonida + Chinese herbal medicine" on the product packaging of its "Bifidobacterium Tianbao Oral Liquid", which is neither a trademark nor a product name, but the Text describing the ingredients of the product. Therefore, it does not constitute an infringement of the registered trademark rights of "Three Pearls" and graphics.

3. Indicative use

In order to let the general public understand the true information related to goods and services, such as the need to "indicate the use of goods or services, especially as spare parts When "necessary", the use of another person's registered trademark in business activities is an indicative fair use, but such use must comply with honest industrial and commercial practices. How can we avoid misleading the public and be honest and in good faith when using other people's trademarks to indicate the goods we sell or the services we provide? In order to solve the problem of auto parts sales stores and auto repair stations in some places using certain registered trademarks of Chinese and foreign automobiles on shop signboards without the permission of the trademark owner, in 1995, the State Administration for Industry and Commerce pointed out as follows: : Auto parts sales stores and auto repair sites. In order to explain the types of auto parts the store operates and the scope of services provided, narrative text should be used directly, such as "This store sells such-and-such auto parts" and "This store repairs such-and-such cars." The fonts of other words should be consistent, and the word trademark part of it should not be highlighted, nor should other people's graphic trademarks or other people's word trademarks be used alone. Otherwise, consumers will objectively mistakenly believe that there is some connection between the operator of the store and the trademark registrant.

4. Prior use right

If the same or similar trademark has been used on the same or similar goods and services before the registration of another person’s trademark is approved, after the trademark is registered, Under the premise of not violating the principle of fairness, you have the legal right to continue to use the trademark within the original scope. This prior right of use of a registered trademark has the same meaning as the “right of prior use” of a patent. Strictly speaking, prior use rights do not constitute legitimate and bona fide use of a trademark, but are alternative restrictions on trademark rights. Because in the first three categories of legitimate and bona fide uses mentioned above, although others’ registered trademarks are used, these so-called “uses” are all uses in the sense of “non-trademark”. The user himself has no subjective intention to use the corresponding words or graphics as a trademark, and the use of these "trademarks" is not enough to identify the source of the goods in practice, and consumers will not make any judgments about the goods or products based on the words and graphics. Confusion arises about service origin. "Prior use" refers to use in the full sense of a trademark. If you are not careful, it will cause confusion among consumers about the source of goods and services. It should be pointed out in particular that the "prior use right" stipulated in my country's current Trademark Law Implementation Regulations is limited to some service marks stipulated in Article 54, and does not include commodity trademarks and most service marks.