1, management solution
(1) The administrative jurisdiction of trademark infringement cases can be either the administrative department for industry and commerce where the infringer is located or the administrative department for industry and commerce where the infringement is committed.
(2) After accepting a trademark infringement case, the administrative department for industry and commerce at or above the county level shall, on the premise of ascertaining the facts, stop the infringement through investigation and evidence collection, and give administrative punishment according to the illegal facts and the seriousness of the infringer. Specific punishment measures include:
1. Ordered to stop selling immediately;
Second, accept and destroy the infringing trademark identification;
Third, eliminate infringing trademarks on existing trademarks;
4. Inviting molds, printing plates or other criminal tools directly used for trademark infringement;
Five, ordered and supervised the destruction of goods;
Six, according to the circumstances, impose a fine of less than 50% of the illegal business or less than 5 times the profit from the infringement, and may order the infringer to compensate the infringed for the losses.
(3) Where the administrative department of commerce considers that the exclusive right to use a registered trademark has been infringed, it may exercise the following functions and powers during investigation and evidence collection:
First, ask relevant parties;
Two, check the articles related to infringement activities, and may be ordered to seal up when necessary;
Third, investigate acts related to infringement activities;
4. Consult and copy contracts, account books and other business materials related to infringement activities. Choosing the administrative department for industry and commerce to handle trademark infringement cases has its unique advantages: the personnel who accept the case are familiar with the business, the procedures are simple, the case is closed quickly, and it saves time and effort. However, its obvious deficiency is that the administrative decision has no final effect, and if the parties are dissatisfied with the handling by the administrative department for industry and commerce, they can still bring a lawsuit to the people's court.
2. Litigation solution
(1) Jurisdiction: Trademark infringement cases can be under the jurisdiction of the people's court where the infringement occurred or where the infringer is located. In this regard, the infringed can choose the place where the infringement occurred or the people's court where the infringer is located to prosecute. At the same time, due to the complexity of trademark infringement cases, the Supreme People's Court has designated the Intermediate People's Court as the jurisdiction court.
(2) People's courts generally deal with trademark infringement cases by means of civil sanctions. The people's court may take the following measures independently or in combination according to the rights of prohibition, compensation for losses, return of improper interests and restoration of reputation exercised by the infringed:
1. Order the infringer to stop the infringement immediately. You can destroy articles that constitute infringement, dismantle equipment used for infringement, and invite tools and templates directly used for infringement;
The second is to eliminate the influence and restore the reputation of the infringed, such as ordering the infringed to publish an apology statement in newspapers and periodicals to restore the commercial reputation of the infringed;
Three, compensation for the losses of the infringed, the amount of compensation shall be calculated according to the profits gained by the infringer during the infringement period or the losses suffered by the infringed. In addition, the infringer should also compensate the infringed for the expenses incurred in investigation, evidence collection, and hiring an agent ad litem or a non-litigation agent.
Four, in addition to the above-mentioned main measures, the people's court can also take admonition, order a statement of repentance, confiscation of illegal income, fines or detention and other measures.
(3) Civil procedure is applicable to the litigation settlement of subject matter infringement cases.
Prosecution: Before bringing a lawsuit, the trademark infringer must bring a lawsuit to the people's court according to law. When a trademark is sued by an infringer, attention must be paid to:
To file a lawsuit in a people's court and submit copies according to the number of defendants; There must be a clear defendant, that is, the trademark infringer, and a specific request for prosecution, such as stopping the infringement and demanding certain compensation. There are facts and reasons, that is, the relevant certification documents of registered trademarks and evidential materials to prove the infringement of the infringer should be attached when suing; The prosecution should belong to the jurisdiction and management scope of the sued people's court, and choose the court that is most beneficial to the parties within the scope permitted by law; The prosecution shall be brought within the limitation period prescribed by law, that is, within 2 years from the date when the trademark owner knows or should know that the exclusive right to use a trademark has been infringed by others. In addition, trademark infringement cases are complicated, and the parties may entrust 1 to two agents to participate in the litigation. It is very important to choose the personnel of trademark agency or lawyers who are proficient in trademark law as litigation agents to effectively safeguard the legitimate rights and interests of the parties.
Trial: If the people's court meets the statutory requirements after examination, it shall file a case for acceptance. The trial of trademark infringement cases must be conducted in accordance with legal procedures. By trying trademark infringement cases, the people's courts find out the facts, distinguish right from wrong and clarify the responsibilities. On this basis, the focus of the dispute between the two parties, that is, whether it constitutes infringement, whether it should be compensated and the amount of compensation, is judged.
Property preservation: property preservation is a very important issue in trademark infringement litigation. It is of great significance to take correct preservation measures according to law to safeguard the legitimate rights and interests of the infringed. Therefore, property preservation is often used in trademark infringement litigation. Property preservation refers to the compulsory measures taken by the people's court to restrict the disposition or transfer of relevant property at the application of a closely related person or party before litigation or judgment, so as to protect the legitimate rights and interests of the closely related person or party in a timely and effective manner. Property preservation includes litigation property preservation and pre-litigation property preservation, which are applicable to different legal situations respectively.
The applicable conditions of litigation property preservation are:
First, the court has accepted the case, but has not made a judgment;
Two, the case has specific payment content, due to the behavior of one party or other reasons, it may make the subsequent judgment impossible or difficult to execute, such as the infringer's unauthorized transfer, concealment, destruction, sale and other related items. ;
Three. The applicant provides a guarantee (if the people's court makes a ruling on property preservation ex officio, the parties need not provide a guarantee).
The applicable conditions of pre-litigation property preservation are:
First, during the pre-litigation period, if there is an emergency, if the preservation measures are not taken immediately, the interests of the applicant will suffer irreparable losses;
Two, the application must be made by the applicant, the people's court can not take the initiative to make a preservation ruling;
Three, the applicant must provide a guarantee;
4. The applicant must file a lawsuit within 15 days after the court takes the preservation measures, otherwise the court will lift the pre-litigation property preservation according to law.
Applicants applying for property preservation have certain scope restrictions. The scope of the request must be the property directly related to the financial matters related to the case or the substantive rights that the applicant requests to protect, and it cannot involve the personal rights of the respondent or the property and personal rights of people other than the respondent. In trademark infringement cases, the scope of application for preservation includes the infringer's funds, the place of manufacture, storage, transportation, machinery and equipment, tools and the infringing product itself. Property preservation can be sealed up, detained or frozen.
When applying for property preservation, the parties concerned shall strictly abide by the law. If the application error causes losses to the respondent, the applicant shall be responsible for compensation.
Execution: Execution is the last stage of the litigation procedure, and it is also an important way to realize the rights and interests of the winning parties. According to the provisions of the Trademark Law, if a party refuses to accept the fine decision of the administrative department for industry and commerce, he may bring a lawsuit to the people's court within 15 days of receiving the notice; If neither prosecution nor performance is made, the relevant administrative department for industry and commerce shall apply to the people's court for compulsory execution. If the people's court finds that there is indeed an error in the handling without a ruling, it shall not execute it with the approval of the president and notify the administrative organ; If there is no mistake, it will be enforced and the party concerned will pay the fine. If the party concerned fails to pay the fine automatically, the people's court may issue a notice to transfer it from the bank, or take enforcement measures such as seizure and auction. Trademark infringement compensation can also be enforced.