On the basis of claimed rights, after receiving the complaint and relevant evidence materials, the defendant should first determine the plaintiff's subject and the claimed trademark, and mainly review it from the following aspects:

(1) Whether the subject of trademark registration is consistent with the subject of litigation in this case, and if not, what is the basis for the plaintiff to claim the exclusive right to use a trademark? If the transfer-related transfer materials are available, if it is a license, it is necessary to review the license type, region and license power, etc.

(II) Validity period and category of a trademark. According to the provisions of the Trademark Law, the exclusive right to use a trademark is limited to the trademark approved for registration and the goods approved for use, and there is a time limit. In particular, full attention should be paid to the type of goods, and whether the trademark claimed by the plaintiff belongs to the same category and does not belong to the same category, and whether the plaintiff has submitted relevant evidence of the popularity of the trademark involved;

(iii) Validity of the trademark involved. Articles 1, 11 and 12 of the Trademark Law stipulate in detail the relevant circumstances of the non-registration of the trademark, and Articles 44 and 49 of the Trademark Law stipulate that any unit or individual has the right to file a trademark invalidation. Therefore, in the face of the plaintiff's infringement lawsuit, the defendant can make a radical decision and invalidate the trademark involved according to the specific circumstances.

defense of trademark infringement:

from the perspective of infringement, whether there is infringement should first be determined by combining the plaintiff's complaint, including manufacturing, selling, promising to sell, etc., and the evidence materials on which it is based. Generally, the defense can be made from the following aspects:

(1) The fact that the defendant has infringed cannot be proved from the perspective of evidence, which needs to be examined from the perspective of the three characteristics of evidence combined with specific evidence;

(2) Non-trademark use defense, the function of trademark is to identify the source of goods or services, and the protection of exclusive right is to protect the identity. If the plaintiff's use behavior does not belong to trademark use and cannot produce the identity function, it does not constitute infringement from the perspective of trademark function and purpose;

(3) defense of prior use. according to the provisions of article 59 of the trademark law, before the trademark registrant applies for trademark registration, if someone else has used a trademark that is the same as or similar to the registered trademark and has certain influence before the trademark registrant, the exclusive right holder of the registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use, but may require him to attach an appropriate distinguishing mark. If the defendant's trademark used earlier than the registration time of the trademark claimed by the plaintiff, he can claim non-infringement on the grounds of prior use;

(4) The confusion standard is the fundamental principle to judge whether it constitutes trademark infringement, that is, to judge whether the trademark involved will be confused with the logo of the accused infringing product from the perspective of returning to the market subject ordinary consumers, and it is necessary to make a comprehensive defense from the perspectives of font, pronunciation, habit, size and distinctiveness in combination with specific trademarks.

in judicial practice, the prosecution of trademark infringement cases should first legally identify the criminal facts of public rights, and make a detailed analysis according to the constitutive requirements of trademark infringement stipulated by law. If there are any constitutive requirements of crime, it should be considered as the criminal facts completed, and judicial decisions should be made according to the standards stipulated by law, which should be handled by judicial organs.

Legal basis:

Article 6 of the Trademark Law of the People's Republic of China

If one of the acts listed in Article 57 of this Law infringes on the exclusive right to use a registered trademark and causes a dispute, the parties concerned shall settle it through consultation; Unwilling to negotiate or failing to negotiate, the trademark registrant or interested party may bring a suit in a people's court or request the administrative department for industry and commerce to handle it.

in case of a dispute over the amount of compensation for infringement of the exclusive right to use a trademark, the parties concerned may request the administrative department for industry and commerce to mediate, or they may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of the People's Republic of China. After mediation by the administrative department for industry and commerce, if the parties fail to reach an agreement or fail to perform the mediation after it takes effect, the parties may bring a suit in a people's court in accordance with the Civil Procedure Law of the People's Republic of China.