1. Do I need to compensate if the infringing trademark is not used?
Do I need to compensate? , after the trademark is approved and registered, the obligee shall enjoy the exclusive right to use the trademark. If others use the same and similar goods without permission and may easily cause confusion, it constitutes trademark infringement. However, after the trademark is approved and registered, it is not used by itself, and the trademark registrant cannot If it is proved that there are other losses, the trademark registrant cannot obtain compensation for infringement damages due to the use of the same or similar trademark by others. The new Trademark Law adds the provision that registered trademarks that have not been actually used cannot obtain compensation for infringement damages.
Negotiation to determine compensation or prosecution are ways to handle registered but unused trademark infringement cases. After a trademark infringement dispute first occurs, both parties can negotiate, or A third party shall participate in mediation to handle the trademark infringement dispute. If neither negotiation nor mediation can satisfy the infringed party, the dispute can be resolved by filing a lawsuit with the judicial authority.
my country's "Trademark Law" stipulates that trademark owners shall enjoy trademark exclusive rights, prohibition rights, license rights, transfer rights, renewal rights, etc. If a registered trademark expires and needs to be continued to be used, an application for renewal of registration should be made within six months before expiration. The Trademark Office may order the trademark to be corrected within a time limit or cancel the registered trademark if it changes the registered trademark on its own initiative or stops using it for three consecutive years.
Article 4 of the "Trademark Law Implementation Regulations" stipulates that a registered trademark that has been revoked shall be announced by the Trademark Office. The exclusive right to register a trademark shall be determined by the cancellation decision of the Trademark Office. Ends on the date of departure. These laws stipulate that trademark owners have certain rights over their registered trademarks. These rights are based on the registered trademark itself, such as changes to the registered trademark logo, renewal of rights, and even cancellation of trademarks. Otherwise, you still have the exclusive right to use the trademark.
2. How to deal with trademark infringement
For infringement of the exclusive rights of a registered trademark, the infringed party may request handling from the industrial and commercial administration department at or above the county level, or may directly file a lawsuit with the People's Court. It can be seen that solving the trademarkInfringement disputes can be handled administratively by the industrial and commercial administration department, or through judicial means of filing a lawsuit in the People's Court.
1. Administrative solution
(1) Administrative jurisdiction over trademark infringement cases, both It can be the industrial and commercial administration department where the infringer is located, or it can be the industrial and commercial administrative department where the infringement occurred.
(2) After receiving a trademark infringement case, the industrial and commercial administration department at or above the county level shall stop the infringement through investigation and evidence collection and on the premise of determining the facts, and Administrative penalties will be imposed based on the infringer's illegal facts and the severity of the circumstances. Specific punishment measures include:
1) Order to stop sales immediately;
2) Accept invitations And destroy the infringing trademark logo;
3) Eliminate the infringing trademark on the current trademark;
4) Invite molds, printing plates or other crime tools that are directly used for trademark infringement;
5) Order and supervise the destruction of items;
6) Depending on the circumstances, a fine of not more than 50% of the illegal business revenue or not more than five times of the profits obtained from the infringement shall be imposed, and the infringer may be ordered to compensate the infringed party for the losses.(3) If the commercial administration authority believes that the exclusive right to use a registered trademark has been infringed, it may exercise the following powers when investigating and collecting evidence:
1) Question the relevant parties;
2) Inspect items related to infringement activities and, if necessary, order them to be sealed;
3) Investigate behaviors related to infringement activities; 4. Review and copy contracts, account books and other business materials related to infringement activities.
Choosing the industrial and commercial administrative department to handle trademark infringement cases has its own unique advantages: the personnel handling the case are familiar with the business, the handling procedures are simple, and the case is concluded quickly, thus saving money Save time and effort. However, its obvious shortcoming is that the administrative decision has no final effect. If the parties are dissatisfied with the handling by the industrial and commercial administrative organs, they can still file a lawsuit in the People's Court.
2. Litigation settlement methods
(1) Jurisdiction. Trademark infringement cases may be under the jurisdiction of the People's Court of the place where the infringement occurred or where the infringer is located. In this regard, the infringed party can freely choose the place where the infringement occurred or the people's court where the infringer is located to file a lawsuit. At the same time, due to the complexity of trademark infringement cases, the Supreme People's Court currently designates the Intermediate People's Court to have jurisdiction.
(2) The People's Court generally adopts civil sanctions in handling trademark infringement cases. Based on the infringed party’s right to claim for prohibition, claim for loss compensation, claim for return of undue benefits, and claim for restoration of reputation, the People’s Court may adopt the following methods individually or in combination:
1) Order the infringer to immediately stop the infringement. Items constituting infringement can be destroyed, equipment used for infringement can be dismantled, and tools, templates, etc. directly used for infringement can be invited;
2) Eliminate the impact , to restore the reputation of the infringed party, such as ordering the infringed party to publish an apology statement in newspapers and magazines, etc., to restore the business reputation of the infringed party;
3) Compensate the infringed party for losses. The amount of compensation is calculated based on the profits gained by the infringer due to the infringement during the infringement period or the losses suffered by the infringed party due to the infringement during the infringement period. In addition, the infringer should also compensate the infringer for the expenses incurred by the infringed party in investigating, collecting evidence, and hiring litigation or non-litigation agents;
4) In addition to the above main methods, the people's court can also take measures such as admonishment, ordering repentance, confiscation of illegal gains, fines or detention.
(3) Civil litigation procedures are applicable to the litigation settlement of trademark infringement cases.
Prosecution. The person whose trademark has been infringed must file a lawsuit with the People's Court in accordance with the law before launching a lawsuit. When a trademark infringer sues, you must pay attention to the following:
Trademark infringement cases are relatively complex, and the parties can entrust 1 to 2 agents to participate in the lawsuit. Choosing someone from a trademark agency or a lawyer who is proficient in trademark law as your litigation agent is very important to effectively protect the legitimate rights and interests of the parties.
When the rights of trademark rights holders are infringed upon, they must take up legal weapons to protect their legitimate rights and interests. Connivance and retreat will not solve the problem. Of course, this kind of process can be sued by the processorSince trademark infringement cases take a long time, most people will still negotiate with the other party first after trademark infringement occurs.
It should be noted that our country’s laws and regulations do not clearly provide for the protection of ordinary unregistered trademarks. If you are the trademark owner of an ordinary trademark, , if you want to protect your rights to use it at work, it is best to register the trademark at this time, which is also to better protect your trademark rights.
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