How to identify trademark infringement
Trademark infringement means that the perpetrator uses the same or similar products without the permission of the trademark owner. Using a trademark that is the same as or similar to the registered trademark on the goods, or other behaviors that interfere with or hinder the trademark owner from using its registered trademark and damage the legitimate rights and interests of the trademark owner. If the perpetrator sells goods that he knows or should have known are counterfeit registered trademarks, the natural person or legal person whose exclusive right to use the trademark has been infringed has the civil right to require the infringer to stop the infringement, eliminate the impact, and compensate for losses. Trademark infringement can be determined in accordance with the law and ex officio.
To determine trademark infringement, you need to grasp the following points:
1. Follow the rules for protecting registered trademarks In principle, the exclusive right to use a trademark is generated through registration, during which it has gone through statutory procedures and strict review. Therefore, after the exclusive right to use a trademark is established, it should be protected within the scope of the law. Even if a trademark is considered improperly registered, it must be revoked before it is revoked. And so it should be.
2. Reasonable determination of similar trademarks Similar trademarks refer to the glyph, pronunciation, meaning of words or the composition and color of graphics or the overall structure of words and graphics, which are similar to Compared with registered trademarks, it is easy for consumers to misunderstand the origin of goods. Determining similar trademarks requires detailed analysis of specific circumstances. Comparisons are mainly made from the sound, shape, and meaning of the trademark, combined with factors such as composition, color, and overall structure, and a combination of isolated observation, overall observation, and key part observation is adopted. Make a comprehensive judgment. In the determination, the basic conditions should be considered as being likely to cause consumers to misunderstand the source of the goods, but the necessary conditions should not be considered as causing actual misunderstandings. To determine that trademarks are similar, the approved registered trademark text, graphics or combination thereof shall prevail, rather than the trademark actually used by the registered trademark owner, because the trademark actually used by the registered trademark owner is sometimes different from the approved registered trademark. Totally consistent. It is worth pointing out that the standards for registration and management are consistent in determining trademark similarity, but there are sometimes slight differences in handling individual cases. The reason is that registration is a static determination and management is a dynamic determination.
3. Correctly determine similar goods. Similar goods refer to the use of a trademark that is the same or similar to a registered trademark.Products that have similar functions, uses, raw materials, production companies, consumer targets, sales channels, etc., which may easily cause consumers to misunderstand the source of the product. To determine similar goods, the premise is the relationship between the goods and the relationship between the goods and the trademark. Goods that have the same functions and uses, and share common consumption targets and sales channels are generally considered similar goods. However, the raw materials and production companies of the goods can clearly indicate the source of the goods and will not cause confusion among consumers. , should not be regarded as similar goods. If there is a specific connection between the goods and services, and the use of the same or similar trademarks will easily make consumers think that the goods or services are provided by the same enterprise, the goods and services should be deemed to be similar. In order to facilitate registration and management, my country has adopted the International Classification of Goods and Services for trademark registration, which divides goods and services into 42 categories, and each category is divided into several groups. At the same time, the Trademark Office also has internal distinctions between similar goods. Master the standards. Although the above two standards are not the basis for classifying similar goods, they can be used as a reference for identifying similar goods. Judging from the actual situation, there are tens of millions of goods and services. With the development of science and technology and changes in economic needs, some goods and services are not reflected in the classification table and distinction table. Moreover, things that were similar in the past may not be similar now, and things that were not similar in the past may be similar now. It does not mean that things of the same type and the same group are similar, nor does it mean that things of different types and different groups are not similar. This requires specific analysis of specific situations in management and consistency with the standards mastered by registration. To determine similar goods, the goods for which the registered trademark is approved should be used as the standard, rather than the goods actually used by the owner of the registered trademark.
4. Do not make a choice based on the quality of the goods. A trademark is a sign that distinguishes the source of the goods. It has the function of indicating the quality of the goods, but it is not the main function; "Trademark Law" The regulations include supervision of product quality, but the main content is to protect the exclusive rights of registered trademarks. Therefore, in specific infringement cases, the quality of the goods does not affect the determination of trademark infringement. If others use a trademark that is identical or similar to a registered trademark without authorization, even if the quality of their goods is better than that of the owner of the registered trademark, it shall be deemed a trademark infringement. As for the owner of a registered trademark whose goods are of low quality, shoddily manufactured or passed off as good, which constitutes deceiving consumers, other provisions of the Product Quality Law and the Trademark Law can be applied, and it has no direct connection with the determination of trademark infringement. .
5. Do not give up on the illegal use of the registered trademark owner. The exclusive right to use a trademark is a civil right, and the registrant has the right to exercise its rights within the scope of the law. . If the registrant violates the Trademark Law and the Implementing Rules of the Trademark Law during the use of a registered trademark, relevant provisions may be applied and the registrant shall be required to bear corresponding administrative legal responsibilities, but this will not affect the determination of trademark infringement. . In this case, if others use a trademark that is identical or similar to the registered trademark without authorization,should be considered as trademark infringement. The illegal use of registered trademark owners mainly includes: changing the words, graphics or combinations of registered trademarks on their own; stopping use for three consecutive years; not indicating registered words or marks when using registered trademarks. Since the exclusive right to use a trademark is a civil right, if the owner of a registered trademark engages in the above-mentioned illegal use during the exercise of rights, that is, there is a subjective fault and the resulting infringement causes others to infringe, the infringer is not liable for infringement.
6. Reasonable definition of normal use. If others use the same or similar words and graphics as the registered trademark without authorization, it does not all constitute trademark infringement: if such use If it is used in a normal way, it does not constitute trademark infringement.
7. Comprehensively measure other factors. In the process of identifying trademark infringement cases, in addition to the factors that need to be grasped above, there may also be other factors involved, such as the popularity of the trademark, The distinctiveness and specific use method, the relationship between the parts and components of the goods as a whole, the degree of subjective fault of the owner of the disputed trademark, etc. Due to the inconsistency in other factors involved in individual cases, the determination of trademark infringement will also be inconsistent.
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