at present, three-dimensional trademarks (three-dimensional trademarks), color trademarks, sound trademarks, action trademarks, smell trademarks, tactile trademarks, hologram trademarks and position trademarks are generally called non-traditional trademarks, that is, new trademarks. According to visibility, non-traditional trademarks can be divided into two categories, one is visibility, including three-dimensional trademarks, color trademarks, action trademarks, hologram trademarks, position trademarks, etc. The other category is non-visibility, including sound trademark, smell trademark, taste trademark, touch trademark and so on.
article 8 of the new trademark law cancels the restriction of "visibility" and clearly stipulates that sound can be used as a trademark to apply for registration, which opens the legal door for China to accept applications for new trademarks.
the examination of sound trademarks, like other types of trademarks, also needs to be examined for legality, distinctiveness and prior rights.
under normal circumstances, the distinctive features of a sound trademark can only be obtained after long-term use, and the Trademark Office may issue a review opinion, requiring the applicant to submit evidence of use, and explain the distinctive features of the trademark obtained through use.
second, add the applicable standards of review opinions in review practice.
most countries in the world have established a system of exchange of views before dismissal, that is, the system of rejecting defense. The "review opinion system before rejection" stipulated in China is consistent with the above-mentioned "defense system for rejection" abroad, but it is not exactly the same in specific content.
The trademark examination system before the revision of the law is not conducive to the communication between the trademark examiner and the applicant, which brings a lot of inconvenience to the applicant. With reference to international practice, the new trademark law stipulates the system of examination opinions. The Standard clearly defines the scope of application of the review opinions.
thirdly, the revision of article 1 of the new trademark law has caused changes in the examination standards.
this change is reflected in the following aspects: first, the national anthem, the military emblem and the military song are added to Article 1 (1) (1) of the new Trademark Law, and the names and symbols of central state organs are added. The above contents and cases have been added to the Standard. Second, the new standard has revised the specific application scope of "except with the consent of the government" and "except with the consent of the organization or not easily misleading the public" in Article 1 (2) and Article 1 (3). Third, the revision of Article 1 (1) (7) of the Trademark Law has caused new changes in the standards. The fourth is to divide the examination standard of trademark composed of other people's names into two situations. Fifth, it is stipulated whether the full name of an enterprise can be registered as a trademark. The sixth is to distinguish the examination standard of marks containing the name of our country from two situations.
Fourthly, the new Trademark Law prohibits trademark agencies from applying for registered trademarks beyond the scope, and adds the applicable standard of Paragraph 4 of Article 19 of the Trademark Law.
in the examination of trademark form, the trademark agency's application for registration of goods or services other than agency services will not be accepted; If it has been accepted, it shall be rejected in the substantive examination; The application for registration of agency services shall be examined in accordance with ordinary trademarks.
At present, the agency service of trademark agency is tentatively defined as the service item in the 456th similar group in the Classification of Similar Goods and Services (based on the tenth edition of Nice Classification).
Fifthly, the new Trademark Law stipulates the examination period and adds the applicable standard of Article 5 of the Trademark Law.
the original trademark law did not specify the time limit for examination, but the new trademark law stipulated the time limit for examination and trial. In order to ensure the statutory time limit of nine months, the provisions of Article 5 of the Trademark Law must be applied: if a registered trademark is revoked, declared invalid or will not be renewed upon expiration, the Trademark Office will not approve the application for trademark registration that is the same as or similar to the trademark within one year from the date of revocation, invalidation or cancellation.
the standard provides the following conditions for the application of article 5 of the trademark law: when making a review decision, a previously identical or similar registered trademark is revoked (except for three consecutive years of non-use), declared invalid or will not be renewed upon expiration, and if it is less than one year from the date of revocation announcement, the period of reexamination for invalidation or the date of expiration of the exclusive right to use a trademark, article 5 shall be applied and cited.
Article 5 does not apply to a previously identical or similar registered trademark that has been revoked because it has not been used for three consecutive years. After the period of reexamination for deregistration, if the original registrant fails to file a reexamination for deregistration, it will not be cited.
the provisions of article 5 of the trademark law shall not apply if the original registrant reapplies for the registration of the trademark.
Sixth, the trial standard of Paragraph 2 of Article 15 of the Trademark Law is added.
the new standard stipulates the requirements that a specific related party must meet in preempting others' prior use of a trademark, the judgment of contract, business relationship and other relationships, and the judgment of "prior use".
Seventh, add the criteria for identifying interested parties.
interested parties include: the licensed users of prior trademark rights and other prior rights; Legal successors of prior trademark rights and other prior rights; Pledgee of prior trademark right; Other subjects with evidence to prove that they have an interest in prior trademark rights and other prior rights. To judge whether the applicant is an interested party, in principle, the application for objection or invalidation shall prevail. If you don't have an interest at the time of application, but you already have an interest at the time of trial, you should be recognized as an interested party.
Eighth, delete and add some cases, and enrich and improve the content of trademark examination and trial standards.
The new standard cuts out some inappropriate cases and adds some new cases with characteristics of the times. Some changes have also been made to the examination standards for three-dimensional trademarks, such as: can a trademark that specifies the combination of common or commonly used shapes of goods, three-dimensional graphics of packaging and other distinctive signs be registered? The original review standard considers that the whole has significant characteristics and can be preliminarily examined and approved; The new standard draws lessons from the practice of the European Union, and is preliminarily approved as a whole. At the same time, it takes into account the needs of guiding the administrative law enforcement of local industrial and commercial and market supervision departments, and it is stated in the announcement of preliminary approval of trademarks and the trademark registration certificate that its universal three-dimensional part waives the exclusive right to use trademarks.