The exclusive right to use a trademark is produced through registration, and has gone through legal procedures and strict examination. Therefore, after the establishment of the exclusive right to use a trademark, before it is revoked, even if it is considered that the trademark is improperly registered, it should be protected within the scope of law.
The decision or ruling to revoke a registered trademark has no retrospective effect on the decision made and implemented by the administrative department for industry and commerce before revocation.
After the expiration of the registered trademark, within the grace period of six months stipulated by law, if the owner of the original registered trademark has not applied for renewal, or the application for renewal has been rejected, the use of the same or similar trademark by others during this period does not constitute trademark infringement; The owner of the original registered trademark applied for renewal and was approved, and others used the same or similar trademark during this period, which constituted trademark infringement.
(two) accurate identification of similar trademarks
The identification of approximate trademark or logo is an indispensable part of trademark infringement judgment. Infringement can only be established if two conditions are met: "the trademark or logo is similar in composition" and "used on the same or similar goods".
Similar trademarks are different from the same trademarks. Although there are some visual differences, they are similar to registered trademarks in other aspects, such as pronunciation and meaning, which is enough to cause misunderstanding or confusion among consumers. Review whether two trademarks are similar trademarks, generally should consider the following aspects:
1, trademark appearance.
That is, observe the visual images of the words, graphics or their combinations of two trademarks from the perspective of ordinary consumers to see if they will cause misunderstanding or confusion. For example, the graphic trademark "HOVER" used by a company in Jiangsu differs from the graphic trademark "HOOVER" registered by a company in Britain by only one letter, and the visual similarity and pronunciation are basically the same, which is enough to cause misunderstanding among consumers, so it should be considered as an approximate trademark. Another example is "Sanofi" used by a company in Tianjin and "Sanofi" registered by a company in France. Only the order of the last four letters is slightly different, but the overall structure and pronunciation of the two trademarks are very similar, which is easy for consumers to mistake, so it constitutes an approximate trademark used in similar goods.
2. Trademark pronunciation.
Judging from people's hearing, are the two trademarks confused because of their similar pronunciation? For example, a company in Jiangsu uses "Chanel" as a trademark. Although the meaning is different from the French word "Chanel" (Chinese transliteration of "Chanel") and the English letters are not similar, the pronunciation is similar, especially in the Chinese language environment, which constitutes an approximate trademark. Another example is "Today" and "Golden Day".
3. The meaning of the trademark.
Analyze whether the two trademarks have the same or similar meanings, which causes consumers to confuse the source of goods. For example, the meaning of "blue sky" is the same as that of "blue sky" and "blue sky" in Chinese, which easily leads people to misunderstand the relationship between manufacturers and specific goods, and mistakenly think that the goods marked with "blue sky" are series products of "blue sky".
(C) the correct judgment of similar goods
Determining the criteria for judging the same or similar goods is the key to comparing two kinds of goods.
Although the State Trademark Office has compiled a similar commodity classification table, it is difficult to solve the approximation problem in practice due to technical reasons. Therefore, the Classification Table of Similar Commodities and the International Classification Table of Goods and Services for Trademark Registration are not the basis for classifying similar commodities, but can only be used as a reference for identifying similar commodities. It is the only feasible choice in practice to judge whether the two commodities are similar in functions, uses, raw materials, manufacturers, consumers and sales channels, and whether this similarity easily leads consumers to misunderstand the source of the commodities.
In particular, it should be pointed out that different categories and different groups do not mean that they are not similar, and they should be analyzed in detail. For example, drinks and mineral water named "so-and-so mineral spring ice" belong to the thirty-second category, while ice bricks and popsicles belong to the thirtieth category, and they are not in the same category. However, because the raw materials, uses, sales channels and consumer groups are basically the same, and the production process is similar, it should be recognized as similar goods. Moreover, the standards of similar commodities are constantly developing and changing with the development of the times. Some previously dissimilar products may become similar commodities due to the emergence of new materials, new processes and new forms, as well as changes in functions, uses and sales channels.
Where a trademark identical with or similar to a registered trademark is used, the goods approved for use with the registered trademark are similar in functions, uses, raw materials, manufacturers, consumers and sales channels. It is easy for consumers to mislead the source of goods as "similar goods".
Judging whether it is a "similar commodity" depends on the relationship between commodities and the relationship between commodities and trademarks. Commodities with the same function and use, consumers and sales channels are generally recognized as similar commodities. However, if the raw materials, production enterprises and other factors can clearly indicate the source of the goods, consumers will not mistake them, so they should not be regarded as similar goods. If there is a specific relationship between goods and services, and the use of the same or similar trademarks is likely to make consumers think that they are goods or services provided by the same enterprise, they should be deemed to be similar.
(four) do not judge the quality of goods.
The main content of trademark law is to protect the exclusive right to use registered trademarks. Therefore, when dealing with trademark infringement cases, the quality of goods will not affect the determination of trademark infringement. The unauthorized use of a trademark that is the same as or similar to its registered trademark by others, even if the quality of its goods is better than that of the registered trademark owner, shall also be regarded as trademark infringement. Other provisions of the Product Quality Law and the Trademark Law can be applied to deal with the acts of the registered trademark owner that the goods are inferior in quality or even inferior in quality, inferior in quality or cheating consumers, which is not directly related to the determination of trademark infringement.
(5) Illegal use of a trademark registrant.
The exclusive right to use a trademark is a civil right, and registrants can exercise their rights within the scope permitted by law. If the registrant violates the Trademark Law and the Detailed Rules for the Implementation in the process of using a registered trademark, relevant provisions can be applied to deal with it, requiring the registrant to bear corresponding administrative legal responsibilities, but it does not affect the determination of trademark infringement. In this case, if another person uses a trademark that is the same as or similar to its registered trademark without authorization, it shall be deemed as trademark infringement. Although the illegal use of a trademark registrant does not affect the determination of trademark infringement, it may affect the exercise of its rights and even make it lose its right to claim compensation.
(six) a reasonable definition of normal use behavior
The unauthorized use of words or graphics identical with or similar to a registered trademark by others does not necessarily constitute trademark infringement. It depends on whether its use is justified. For example, the trademark "Zhu San" is a registered trademark used by one company on drugs, and another company uses the words "Zhu Sanxiang Mushroom and Ten Chinese Herbal Medicines" on the packaging of oral liquid products to indicate the ingredients of oral liquid products (verified by verification). Because "Zhu San" is not used as a trademark or commodity name here, it is a normal description of the commodity, so it should not be considered as infringement of the exclusive right to use the registered trademark of "Zhu San".
(7) Comprehensive measurement of other factors
In the process of identifying trademark infringement cases, in addition to the above factors, other factors may be involved, such as the popularity, distinctiveness, specific use mode, subjective fault degree and the relationship between parts and the whole. Because other factors involved in the case are inconsistent, the determination of trademark infringement will be inconsistent. As far as the popularity of a trademark is concerned, generally speaking, the higher the popularity, the wider the scope of protection, and the greater the possibility that others use it without authorization, it will be recognized as trademark infringement.