Do both product trademarks infringe copyright?
Both product trademarks also infringe trademark rights.
1. The process of identifying infringement of registered trademark rights
The process of identifying infringement of registered trademark rights has the following three basic steps:
1) Determine the scope of exclusive rights to a registered trademark. The scope of exclusive rights of a registered trademark is the basic basis for determining trademark infringement. All factors considered in determining whether a trademark infringement can be identified or alleged to constitute a trademark infringement revolve around the scope of exclusive rights to a registered trademark.
The exclusive right to register a trademark is limited to the approved registered trademark and the approved goods for use. Obviously, judging from this provision, the scope of exclusive rights to a registered trademark is limited to the approved trademark and the goods approved for use by the registered trademark. The scope is determined by two factors, one is the approved registered trademark; the other is the goods approved for use by the registered trademark. The combination of the two constitutes the scope of exclusive rights of a registered trademark, which also determines the standard for comparing trademark infringement with the object of the alleged infringement in order to draw a conclusion as to whether it constitutes infringement.
2) Determine the specific object of the alleged infringement. The determination of the object of alleged infringement is determined by two factors, one is the trademark that is accused of infringement, and the other is the goods used in the trademark that is accused of infringement. The significance of determining the specific object of the alleged infringement is to determine and solidify the carrier of the alleged infringement, laying a solid foundation for the next step of comparison with the scope of protection of trademark rights. It is as important as determining the scope of exclusive rights to a registered trademark and is another comparison object for determining trademark infringement.
3) Compare the alleged infringement object with the registered trademark and the goods approved for use by the registered trademark, and determine whether the alleged infringing trademark and the registered trademark are the same or similarity, and whether the goods used by the alleged infringing trademark are of the same type or similar to the goods approved for use by the registered trademark.similar. Through the three basic steps to identify infringement, especially after comparing the alleged infringement object with the registered trademark and the goods approved for use by the registered trademark, the comparison results may be as follows:
1. The trademark accused of infringement is the same as the registered trademark, and the goods used by the accused trademark are of the same category as the goods approved for use by the registered trademark.
2. The trademark accused of infringement is the same as the registered trademark, and the goods used in the accused trademark are similar to the goods approved for use by the registered trademark.
3. The trademark accused of infringement is similar to the registered trademark, and the trademark used by the accused trademark belongs to the same category as the goods approved for use by the registered trademark.
4. The trademark accused of infringement is similar to the registered trademark, and the goods used in the accused trademark are similar to the goods approved for use by the registered trademark.
5. The trademark accused of infringement is the same as the registered trademark, and the goods used by the accused trademark are not in the same category as the goods approved for use by the registered trademark. goods, nor are they similar goods.
6. The trademark accused of infringement is similar to the registered trademark, and the goods used by the accused trademark are not of the same type as the goods approved for use by the registered trademark. goods, nor are they similar goods.
7. The trademark accused of infringement is neither identical nor similar to the registered trademark. The goods used in the accused trademark are the same as those approved for use by the registered trademark. The products are of the same type.
8. The goods accused of infringement are neither identical nor similar to the registered trademark. The goods used in the accused trademark are the same as those approved for use by the registered trademark. Products are similar. According to the provisions of Article 38, Paragraph 1 of my country's Trademark Law, for the first four of the above eight comparison results, the alleged infringer's behavior should be determined as trademark infringement; the latter four results should be determined as not constituting infringement. .
When comparing the alleged infringement object with the registered trademark and the goods approved for use by the registered trademark, you should also pay attention to the following points:
1. When comparing the object of alleged infringement with the registered trademark and the goods approved to be used by the registered trademark, the registered trademark and goods recorded on the trademark registration certificate shall prevail, not the trademark actually used by the owner of the registered trademark andThe goods actually using the trademark shall prevail.Because the actual trademark used by some registered trademark owners may be inconsistent with their registered trademarks, or the registered trademark may be used for goods other than the approved goods. In fact, by doing this, the trademark owner has expanded the scope of its registered trademark exclusive rights without authorization.
In this case, it would be contrary to compare the alleged infringement object with the trademark actually used by the owner of the registered trademark and the goods actually used by the trademark. It violates the provisions of Article 37 of the Trademark Law on the scope of exclusive rights for registered trademarks, and is also unfair to the public.
(2) The trademark and the goods used by the trademark must be compared at the same time, rather than just the trademark or only the goods used by the trademark. This is because the scope of the exclusive right of a registered trademark is determined by the registered trademark and the goods for which the registered trademark is used. Therefore, when determining whether the exclusive right of a registered trademark has been infringed, it is necessary to consider both the trademark and the goods for which the trademark is used. direction for comparison. Only when the trademark that is the object of the alleged infringement is identical or similar to the registered trademark, and the goods that are the object of the infringement are of the same type or similar to the goods for which the registered trademark is approved, can the object of the alleged infringement be determined to be the infringing goods. , only the alleged infringement carried out by the perpetrator can be identified as trademark infringement. On the contrary, after comparison, it is only that the trademark of the alleged infringement object is identical or similar to the registered trademark, but the goods of the alleged infringement object are neither the same nor similar goods as the goods for which the registered trademark is approved; or vice versa. It cannot be regarded as trademark infringement.
2. Identification of similar trademarks
Recognition of similar trademarks Determination is a common task that must be determined in most trademark infringement cases in judicial practice. It is an indispensable key link in the aforementioned trademark infringement determination process. However, the judgment of similar trademarks is more complicated and subjective, so we will discuss it specifically.
The so-called similar trademark means that it is not exactly the same as the registered trademark, but it is the same or similar to the registered trademark in terms of shape, pronunciation or meaning. It is used in the same place as the registered trademark. A trademark is a trademark that is used on identical or similar goods that may easily cause ordinary consumers to misunderstand the source of the goods. Based on the People’s Court’s experience in trying cases of trademark infringement disputes, the following key points should be grasped to determine similar trademarks:
1. Similar trademarks are related to registrationTrademarks exist in comparison. If there is no registered trademark, there will be no similar trademarks targeted in the determination of trademark infringement.
2. A similar trademark is a trademark that is not exactly the same as a registered trademark. If they are exactly the same, they constitute the same trademark as the registered trademark and are no longer similar trademarks.
3. A similar trademark is a trademark that is the same or similar to a registered trademark in shape, pronunciation or meaning. If they are neither identical nor similar, then they are two completely different trademarks, and there is no question of similar trademarks anymore.
4. When judging similar trademarks, the so-called similarity has reached a level that is likely to cause confusion, that is, the trademark is used on the same or similar goods as the registered trademark. For products, ordinary consumers may have a wrong understanding of the source of the product. If there is no misunderstanding, it is not a similar trademark.
In short, whether a trademark is likely to cause misunderstanding, or the probability that a trademark will cause consumers to misunderstand a trademark, is an objective criterion for identifying similar trademarks. That is to say, only those trademarks that are so similar that it is easy for ordinary consumers to misunderstand the source of the goods are considered similar trademarks in the determination of trademark infringement.
Therefore, if a trademark is used on the same or similar goods as the goods for which the registered trademark is approved, whether it is likely to cause misunderstanding by ordinary consumers is a similar trademark. standard. This standard is objective, but it is reflected subjectively by people. It is an objective standard with strong subjective factors.
When identifying similar trademarks, you should also pay attention to the following specific methods:
1. Consider Identify similar trademarks from the standpoint and viewpoint of ordinary consumers, and try to avoid simply analyzing and judging from the judge’s professional perspective. The ordinary consumers mentioned in it belong to an abstract and idealized group, that is, it is assumed that they are neither very mature consumers nor consumers without the ability to identify, but consumers with certain consumption experience.
Although it is difficult to define such consumers in real life, looking at the issue from their point of view requires the judge to only stand from the standpoint of the consumer and Determine the similarity of trademarks from the perspective of ordinary consumers. In the process of identifying similar trademarks, we must avoid subjectivity and ensure that similar trademarks are identified fairly and fairly.
2. Specific comparison methods of isolated observation, overall observation and key part observation [4] should be adoptedLaw.
The first method is to observe in isolation. To determine whether trademarks are similar, the method of isolated observation should be used, rather than the method of comparison. Placing trademarks at different times and locations for observation is called isolated observation, and placing trademarks together for observation is called comparative observation. This is because in actual transactions in the market, consumers often purchase goods after comparing a trademark with trademarks they have remembered elsewhere in the past, and it is not necessarily the case that both trademarks exist at the same time for consumers to see.
In order to objectively grasp the attitude and stance of consumers, it is not advisable to compare the two trademarks on the spot at the same time. Instead, you can only compare the trademarks you see with those in your mind. trademarks for comparison. In this way, the actual situation that causes the possibility of confusion can be more truly reflected, and the differences found in the comparative observation of the two trademarks will not affect the judge's determination of possible confusion in actual transactions.
In the case of comparative observation, as long as the two trademarks are not exactly the same, many differences will definitely be seen. However, in the case of isolated observation, as long as they are still If there is a possibility of misunderstanding among consumers, the trademark should be determined to be a similar trademark.
The second method is overall observation. The so-called overall observation refers to observing the trademark as a whole, rather than just abstracting the various constituent elements of the trademark. Come out and compare them separately.
This is because a trademark, as an identification mark of goods, is composed of the entire trademark. What is mainly left in the memory of consumers is the overall impression of the trademark. and not just some of the individual elements that constitute the trademark. Therefore, when there may be some differences between two trademarks in each of their original constituent elements, and there must be differences, but as long as they are put together as a whole, there is still a possibility of misunderstanding among consumers, they should be deemed to be Similar trademarks. On the other hand, if some of the components of two trademarks may be the same, but as a whole they will not cause consumers to misunderstand, then such trademarks cannot be determined to be similar trademarks.
The scope of exclusive rights of a registered trademark is the basic basis for determining trademark infringement. All factors considered in determining whether a trademark infringement can be identified or alleged to constitute a trademark infringement revolve around the scope of exclusive rights to a registered trademark. If your situation is more complicated, the Legal Savior Network also provides online lawyer consultation services. You are welcome to seek legal consultation.
