How to prove trademark infringement
1. The trademark owner bears the burden of proof for the actual use of the trademark
The right of a registered trademark owner to control its registered trademark is not absolute and unrestricted. In order to maintain the effectiveness of the exclusive rights of trademarks and to play the functions of trademarks in identifying the source of goods, quality assurance, advertising and other functions, trademark rights holders are required to use the trademarks.
In cases involving disputes over infringement of exclusive rights to registered trademarks, when the alleged infringer and the trademark owner dispute whether to use the trademark requested for protection, the burden of proof shall be distributed according to According to the rules, the trademark owner must provide evidence to prove the actual use of the trademark. In terms of the ability and difficulty of proof, requiring the alleged infringer to provide evidence to prove that the trademark requested for protection has not been actually used is unavoidable and seems to be forcing the person to do so.
2. The trademark owner should provide evidence to prove that it has actually used the trademark requested for protection in the approved goods or services
The use of a trademark required under the registration principle must be for the goods or services approved for use. If the registered trademark is not used or has been stopped for a long time on the approved goods or services, it shall be deemed that the registered trademark has not been used. If a registered trademark is only used on some of the approved goods or services, from the perspective of trademark rights protection, the scope of protection of the registered trademark will be limited, that is, for others who have not used the trademark for some of the goods, services or similar products. If the same or similar trademark is used on goods and services, the trademark owner has no right to claim compensation for economic losses.
3. If the trademark owner cannot provide evidence to prove that it has actually used the exclusive right to protect the registered trademark, its claim for compensation for economic losses shall not be supported
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The essence of the protection of the exclusive right of a registered trademark is the protection of the goodwill carried by the trademark. Goodwill will not arise naturally with the registration of a trademark, but must be accumulated through open, genuine and legal use. A trademark that is only registered but not actually used is unlikely to accumulate goodwill or play a role in distinguishing the source of goods or services.use. Even if others use the same or similar trademark on the same or similar goods, although the act falls within the scope of the rights of the trademark owner and he has the right to prohibit it, because the trademark owner has not yet used the trademark, the infringement will not give his trademark rights. According to the principle of compensation for civil damages, the trademark owner has no right to require the alleged infringer to compensate for economic losses.
As for the expenses incurred by the trademark owner to stop the infringement, because during the effective existence of the registered trademark requested for protection, the rights owner’s rights protection behavior is legitimate. When the infringement is determined to be established, Under the circumstances, support should still be provided as appropriate within a reasonable scope.
4. Evidence collection methods in trademark infringement litigation
1. Entrust a professional intellectual property company to investigate and collect evidence .
Due to the highly professional nature of trademark rights cases, it is difficult for the right holder to obtain evidence on his own and to grasp the direction and scope of evidence collection accurately. Generally speaking, professional investigation and evidence collection are more convenient and effective than parties' investigation and evidence collection, and the scope of evidence collection is also wider and more accurate, and often have higher credibility in judicial practice.
2. Report to the administrative agency to collect evidence.
After reporting to the industry and commerce where the infringement is located, the above-mentioned departments can review and copy the contracts, account books and other relevant documents related to the case, question the parties and witnesses, and take photos and videos Conduct on-site law enforcement inspections by other means.
If it is suspected of infringing on the exclusive right to use a trademark, the above-mentioned administrative law enforcement departments can count the quantity and specifications of the suspected infringing products, seal them and take samples from them.
3. The use of notary agencies to collect and preserve evidence is an effective measure to prepare for litigation and preserve and notarize online evidence of trademark infringement.
Trademark rights holders bear the burden of proof of their actual use of the trademark. The trademark right holder should provide evidence to prove that it has actually used the trademark requested for protection in the goods or services for which it was approved. If the trademark owner cannot provide evidence to prove that it has actually used the exclusive right to protect the registered trademark, its claim for compensation for economic losses shall not be supported. There is a detailed introduction in the article, I hope it can help you. If you have any questions, please feel free to consult a lawyer on this website.