In today's era of rapid popularization of mass media and globalization of the knowledge economy, trademarks, as an important part of intellectual property rights, are a product of the development of the market economy. Their value as intangible assets of enterprises is increasing day by day. Cases of trademark infringement More and more. Therefore, the determination of trademark infringement is the core of the trademark rights system. Correctly grasping the determination of trademark infringement is a balance between reasonably protecting the interests of registered trademark owners and the interests of the public. At present, our country has not been able to establish a scientific and complete trademark protection system in essence, and there is no effective unified standard for the identification of trademark infringement. Therefore, in practice, the identification of trademark infringement depends on the judge to a certain extent. Discretion can easily lead to miscarriage of justice. As an individual enterprise, although it is unable to promote the legal process, it can still turn danger into safety by knowing the law and making good use of it.

1. Forms of trademark infringement

Trademark infringement manifests itself in various ways in practice. For operational convenience, the forms of trademark infringement are legally fixed. Possible and necessary. Like most countries, my country's Trademark Law adopts a legislative system of enumerated provisions for the forms of trademark infringement. According to Article 52 of my country’s Trademark Law, trademark infringement is roughly divided into the following categories:

1. Use infringement

The so-called use infringement refers to the infringement of trademark rights without the right to register the trademark. Agree to use the same or similar trademark on the same or similar goods. The most direct purpose of trademark registration is to protect the company's trademark and prevent others from using it at will. Therefore, if you use someone else's registered trademark without consent, regardless of whether you are at fault, it will constitute an infringement of the exclusive right to use the registered trademark of others. In practice, use infringement is the most common form of infringement compared with other forms of infringement, and it is also the most difficult to pursue liability for this type of infringement.

2. Sales infringement

Sales infringement refers to the act of selling goods that infringe the exclusive rights of a registered trademark. Distributors are the intermediary between commodity producers and consumers and have the obligation to provide consumers with qualified commodities. If a dealer provides consumers with goods that infringe on the exclusive rights of others' registered trademarks, it is undoubtedly helping the trademark infringer achieve its goals and harming the rights and interests of the trademark registrant and consumers, so it is also defined as trademark infringement. Like use infringement, sales infringement does not require the dealer to be at fault. As long as there is infringement, he should be held responsible.

3. Reverse counterfeiting infringement

Reverse counterfeiting infringement refers to the act of replacing the registered trademark without the consent of the trademark registrant and putting the goods with the replaced trademark into the market. In reverse counterfeiting, the perpetrator is not the end user of the goods. This behavior artificially separates the connection between the trademark and the goods, deprives others of the opportunity for registered trademarks to expand their reputation through further circulation, and affects consumers. The cognition of the trademark registrant causes the trademark registrant's economic interests to be unable to be fully realized, and damages the trademark owner's exclusive right to the registered trademark, which constitutes trademark infringement.

4. Other infringements

In practice, there are countless forms of trademark infringement. In addition to the above three types of more typical infringement methods, such as: using the same trademark registered by others Or it is not uncommon for similar words to be used as corporate font names.

2. The identification process of trademark infringement

1. Determine the scope of exclusive rights for registered trademarks

Currently, registered trademarks in my country are divided into 45 categories. Registration in different categories and use of the same registered trademark are allowed. Therefore, any use of the same registered trademark will not constitute infringement.

2. Determine the specific objects accused of infringement

After a trademark infringement occurs, the rights holder often first knows about the circulation of the infringing products in the market, and then goes back to pay attention to the origin of the infringing products. If the object of infringement cannot be determined, the protection of rights becomes impossible. Therefore, accurately identifying infringers is an extremely important step.

3. Similarity comparison

Compare the alleged infringement object with the registered trademark and the goods approved to be used by the registered trademark, and determine whether the alleged infringing trademark and the registered trademark are the same Or similar, and whether the goods used by the alleged infringing trademark are of the same type or similar to the goods certified to be used by the registered trademark.

What needs special attention is the judgment of similar trademarks and similar goods:

First of all, the judgment of trademark similarity must be fully in accordance with the provisions of the current law and based on the glyphs and shapes of the words. The pronunciation, meaning, composition and color of the figure, or the overall structure of the combination of various elements are used to determine whether there is similarity. When judging the similarity of trademarks, we must also focus on the general attention of the relevant public, comparison of the whole or major parts of the trademark, and consideration of the distinctiveness and popularity of the registered trademark requested for protection. When comparing, you should also pay attention to the fact that it is a separate comparison. During the comparison process, whether consumers will be confused or misunderstood about the source of the product is also a very important issue in the process of judging whether the trademarks are similar, and sufficient attention should be paid to it.

Secondly, there is the issue of judging similar products. Similar goods refer to goods that are identical or similar in terms of functions, uses, main raw materials, production departments, sales channels, sales places, consumer objects, etc. In practice, the determination of similar goods should comprehensively consider the following factors:

First, the function and use of the goods;

Second, the raw materials and ingredients of the goods;

Fourth, the relationship between the goods and their parts;

Fifth, the producers, consumers and consumption habits of the goods , and other related factors that affect the determination of similar products.

In short, to determine the similarity of goods, all the above factors should be comprehensively considered, but they are not all required.

3. Trademark Infringement Disposal Strategy

The determination of trademark infringement is only a prelude to rights protection actions, and how to properly handle trademark disputes is the ultimate goal. When facing trademark infringement disputes, companies should pay attention to the following points:

1. Find legal basis

In trademark infringement cases, after determining the point of prosecution, To find the relevant legal basis, the so-called legal basis here should be detailed to the basic information of the registered trademark, the registration status of the defendant or plaintiff's trademark, and the relevant provisions of the "Classification Table of Similar Goods and Services". If necessary, we should also collect Relevant provisions in the "Trademark Examination Guidelines". The more complete the preparations for this area, the more targeted the subsequent prosecution or response will be.

2. Prepare evidence materials

After finding the relevant legal basis, the next step is to prepare evidence materials. In legal practice, evidence is the most powerful explanation of the truth. Evidence The preparation of materials should be comprehensively selected and determined around the possible focus of dispute. When gathering evidence, all evidence involved must be fully considered. When arranging evidence, the evidence should be grouped and numbered based on the relationship between the legal relationship, the claim and the reasons, and the content you want to prove as the main line.

Common evidence in trademark infringement litigation includes: evidence proving the qualifications of the plaintiff and defendant; evidence proving that the plaintiff legally holds the trademark and the reputation and market value of the trademark, or that the defendant has the legal right to use the trademark ;Evidence proving that the defendant's product name and product packaging are similar to the plaintiff's trademark and product packaging, or evidence that the goods used by the defendant are not the same or similar to the plaintiff's and the trademark used is not the same as or similar to the plaintiff's registered trademark; Evidence proving that the defendant's infringement or unfair competition caused product sales losses to the plaintiff should also be submitted; other evidence required for the case.

Bajie reminds: The preparation of evidence materials should be as complete as possible, so as to make the entire litigation more beneficial. It is better to ask a team with professional experience to help organize it. Trademark infringement