Introduction From daily necessities to home appliances and automobiles, consumers are accustomed to choosing products through trademarks and brands. However, consumers are often confused by counterfeit goods, and consumer rights protection is in trouble. This issue of "Tiantian 315" focuses on: Trademark, how do I recognize you!

According to the Economic Voice "Tiantian 315" report, in life, everyone is very accustomed to identifying products through trademarks, especially It is a brand that you are close to or familiar with, and you will have a sense of trust when you see its LOGO. However, many consumers have been confused and even deceived by some fake and inferior counterfeit products. How should consumers uncover embroidered clothing from fake brand names and truly understand the quality of the brand? Wang Peizhang, vice president and secretary-general of the China Trademark Association, and Lu Yun, director of the Consumer Rights and Interests Legal Committee of the Beijing Lawyers Association*** He also gave an analysis of today’s topic.

Economic Voice: What is the relationship between trademarks and brands? What do people who want to start a business and some entrepreneurs think about this issue?

Wang Peizhang: In fact, people are paying more attention to it now. It is the brand that leads to certain misunderstandings about trademarks and brands to some extent. The reason for the misunderstanding is that trademark is a legal concept, and brands are often used in the economic field and market. In an essential sense, trademarks and brands are the same thing. The main reason why we are confused is that the connotations, extensions, and functional essences of brands and trademarks are the same.

Lu Yun: I think so too. Our country has a trademark law, which clearly stipulates what can be registered as a trademark and what cannot. Brand is actually more like what ordinary people often say is good, or which brand is more trustworthy. Maybe brand is a more comprehensive concept, which may not only include trust in the trademark itself, but also include some related information provided by the company. Trust in services and products.

Economic Voice: From a consumer perspective, what does a trademark mean to consumers?

Wang Peizhang: Trademarks are of great significance to consumers. There are many types of products. How does a consumer choose a product? Often he will start from the brand and choose the one he trusts most. At the same time, he can greatly save time and cost and improve the quality and experience of his life.

Lu Yun: The most important function of a trademark when it is first established is to identify it. Whether a merchant sets up this trademark or a consumer uses this trademark, the biggest difference is that they trust this trademark and do not trust others. trademark. However, in the process of gradual development of trademarks and enterprises, the mechanism of trademarks will appear, including other intellectual property rights, that is, the trademark itself will be valuable after development. In addition, for consumers, the most important thing about trademarks is their right to choose. We often say that consumers have the right to fair trade and the right to make independent choices. How do consumers choose? They can make judgments based on the business conditions behind the company provided by the trademark, including the nature, attributes, products, and quality of the goods. Therefore, the clarity of trademarks and the protection of trademark rights are a very important condition for the protection of consumer rights.

Economic Voice: From a legal perspective, what are the provisions of the Trademark Law? What impact will registration or not have on the right holder?

Lu Yun: Registration or not? Registration is a huge difference for the right holder. After approval by the national trademark authority, he or she will have the exclusive right to use the trademark. If it is not registered, others can continue to use it. And once the registration is successful, as a professional user of the rights and trademark rights, if others register again, you can sue them for infringement. Moreover, when many companies are established, or even at the beginning of their business, their trademarks may not reflect much value. As the company grows and develops, the trademarks and brands gradually gain value, so it is necessary to Note that trademarks include protection of other intellectual rights.

Economic Voice: What is the value of a registered trademark? Can it bring wealth to the company? What does it mean to the company?

Wang Peizhang: With the Our country is becoming more and more market-oriented, especially since it is closely connected with the international market, and the value of trademarks has become more and more obvious.

For example, one of our companies listed overseas received a loan of several billion dollars from an overseas bank for its trademark, and a domestic company also received a loan of several billion yuan. Judging from the mortgage registration at our Trademark Office, in terms of financing and mortgage, the trademark is an intangible asset. The number of assets used as collateral for loans is increasing, and for many small and micro businesses that have faced some historical difficulties, trademarks as collateral will solve a big problem. Therefore, the value of trademarks is now increasingly valued by enterprises, and the society is also paying more attention to the value of trademarks and brands. In addition, for enterprises, such as management, technology content, innovation, etc., everything represents its inherent intangible value through the symbol of trademark brand.

Lu Yun: In fact, legally speaking, there are two types of objects, one is tangible and the other is intangible. The tangible may be clothing, real estate, and cars that are entities stipulated in property rights law. Intangibles are intellectual achievements, such as intellectual property rights, such as patents, trademarks, and registration rights. In fact, in life, we pay more attention to tangible property rights disputes. However, with the strengthening of intellectual property protection awareness in recent years, everyone pays more and more attention to the intellectual achievements of intangible assets.

Let’s draw our attention back to 2012. This case should also be said to be a universal lesson in trademark law. Some people say that the Apple Proview trademark dispute in 2012 was the case that attracted the most attention that year. Let’s review what happened in the trademark dispute.

Apple wanted to buy ten IPAD trademarks around the world from Proview Group. Unexpectedly, after signing the contract and making payment, Shenzhen Proview came out and said that it was not represented, and that the two domestic IPAD trademarks could not be used with it. Contract Assignment. Since the people who came forward to communicate before were all Shenzhen Proview's people, Apple had no way to accept that another team with the same face suddenly changed its mind and made it foot the bill again. However, since the trademark transfer contract did not have Shenzhen Proview’s seal or Shenzhen Proview’s signature authorization, Apple’s lawyers could only struggle to prove that although Shenzhen Proview’s name did not appear, it was actually involved in the transaction.

It can be said that the battle between Proview and Apple is a battle between a bankrupt enterprise whose life hangs on a thread and the world's largest IT company. After Apple lost the first session of the Shenzhen Intermediate People's Court, the second instance was Apple. The last chance to overturn the verdict is a war between ants and elephants. But don’t forget that there is a sharp weapon in the hands of the weak. Although it is invisible, it is a lever that can tilt global variables, and that is trademarks.

Economic Voice: How should we view some of the disputes and contradictions here?

Lu Yun: The core issue of this case is that there are three parties involved in this case. , one is Apple, one is Taiwan Proview, and the other is Shenzhen Proview. In fact, everyone says that contracts are relative. The other party to the contract you sign must be the rights holder. If he is not the rights holder, he must be authorized. This case may have ultimately resulted from other disputes over the authorization procedures. But we can clearly see that at that time, because it did not get Apple to sign the relevant contract and perform the signing procedures, it did not review the real rights holder and the relevant authorization procedures, which led to the subsequent intervention of three parties. Therefore, this issue is not only in the field of trademarks, but also includes the provisions of contract law, contractual contracts and non-contractual contracts formed in practice. When we review the contract, we must also pay attention to, firstly, whether the counterparty of your contract is a qualified entity; secondly, whether this qualification has relevant hardware qualifications. Third, see if it has rights. If you do not understand the subject at the beginning of signing the contract, the subsequent performance of the contract, including related disputes, will cause you to review the contract's validity when the contract court first examines the validity of the contract. If the subject does not determine the validity of the contract, It is difficult to judge, and subsequent disputes will be even more difficult to resolve.

Economic Voice: What kind of problems may we encounter during the trademark transfer process, or what kind of problems do we often encounter, and how can our company avoid them?

Wang Peizhang: According to Trademark regulations stipulate that when a trademark is transferred, it is generally required to transfer as much as possible. In addition, for example, whether the trademark purchased by the buyer covers all categories and whether there are any omissions, it must be checked to avoid any omissions, otherwise it will create great hidden dangers for subsequent disputes.

Economic Voice: The Trademark Law was enacted in 1982 and revised twice in 1993 and 2001, but it was also seen that a third revision was made in 2013. Regarding revision, should we say that the frequency of this revision is still fast? Why?

Wang Peizhang: In fact, the revision process of the Trademark Law reflects the legalization process of our country. In addition, we can clearly feel that our country has a strong emphasis on knowledge. The degree of emphasis on property rights and a positive and perfect attitude towards the construction of the intellectual property legal system. In particular, the new Trademark Law is based on the previous revisions and continues to adapt to the development of the market economy, and has made many additions and improvements in integrating with international standards. Complete.

Economic Voice: In addition, what are the regulations prohibiting the preemptive registration of other people's trademarks?

Wang Peizhang: For example, some people hope to get something for nothing by leveraging the fruits of other people's labor, as others have already He went to rush to register the trademark he was using. From a legal perspective, for example, there is a type of unregistered well-known trademark, such as Little Sheep in the past. It has become a well-known trademark, but it has not been registered. Many people have copied it. After the recognition and protection of the well-known trademark, for some Illegal acts of counterfeiting are prohibited, and at the same time, the legitimate rights and interests of entrepreneurs' trademarks are protected. This also encourages our country's enterprises to operate with integrity and add value to their trademarks and brands through their own corporate innovations.

Economic Voice: If you violate this trademark law and commit some actions that infringe on the rights and interests of others, what kind of punishment will you receive? How is the new trademark law stipulated?

Wang Peizhang: The new trademark law provisions fully reflect the country’s protection of intellectual property rights and the protection of intellectual property innovation. For example, we have increased the burden of proof for infringers, which is more conducive to protecting the rights of trademark owners. Another provision is to increase punitive damages. The most serious cases can be 1 to 3 times the amount of compensation, including some cases where the evidence cannot be searched, even up to 3 million. This reflects the strength of our country in protecting intellectual property rights, increasing the cost of breaking the law, better protecting intellectual property rights, and truly realizing intellectual property innovation-driven economic development.

Economic Voice: Consumers will judge products through trademark identification and choose product recognition rights. If some companies abuse trademarks and consumers are deceived, how should they protect their rights? Does the Trademark Law have provisions for consumer protection?

Lu Yun: In fact, trademark infringement has a negative impact on consumer rights. The biggest damage is the damage to consumers' right to know, misleading consumers, causing consumers to be unable to identify the goods they really want to buy. From the perspective of the Consumer Rights Protection Law, this behavior can be considered as misleading packaging or outer packaging of the product, and damage to consumers’ right to know can be considered a form of fraud or false advertising, and a refund will be made according to the elimination law. Three propositions can be requested. In addition, from the perspective of trademark law protection, other operators can also claim that this infringement of trademark rights is a kind of trademark infringement.

Economic Voice: Now, do companies pay more attention to the issue of trademark registration? Have more companies started to take action?

Wang Peizhang: Nowadays, enterprises are becoming more and more aware of trademarks. As can be seen from a few figures, by 2015, the cumulative number of registrations exceeded 10 million, reaching 12.25 million, and the number of applications exceeded 18.4 million. Currently, There are 10.34 million valid trademarks. It can be seen that the growth rate has been double digits in recent years. At the same time, judging from the number of trademark applications, enterprises’ awareness of trademarks is also positively correlated with economic growth.

Economic Voice: It is very simple to register a company now. The procedure for registering a trademark is not troublesome. What is the procedure?

Wang Peizhang: The registration procedure is becoming more and more convenient in our country. And now many can also apply for registration through the Internet. Generally, our trademark registration has two parts. The first is domestic registration. The general procedure is to first conduct a trademark inquiry, submit trademark procedures, and then the Trademark Office starts formal examination, substantive examination, preliminary examination announcement and formal trademark registration announcement. link. As an enterprise, you can generally apply directly to the Trademark Office yourself, or you can apply through an entrusted agency.

There are several ways to register overseas. The first way is to register in areas such as Taiwan and Hong Kong one by one. In the United States, the European Union, etc., you can choose to register one by one. You can also register through the Madrid Agreement and directly file a trademark application. Apply to the International Office of the Office, and through this kind of international registration, lay out the layout of the trademark brand for the internationalization of the future market.