1. Is it an infringement to use someone else’s trademark as an avatar?
Purely use it Making an avatar does not infringe, but using it for trademarks and advertising is illegal.
Anyone who commits any of the following acts shall infringe the exclusive right to use a Registered trademark:
( 1) Using the same trademark as its registered trademark on the same kind of goods without the permission of the trademark registrant;
(2) Without the permission of the trademark registrant; License to use a trademark that is similar to its registered trademark on the same kind of goods, or to use a trademark that is the same or similar to its registered trademark on similar goods, which is likely to cause confusion;
(3) Selling goods that infringe the exclusive rights of registered trademarks;
(4) Forging or making without authorization the registered trademark signs of others or selling forged or making without authorization Registered trademark logo;
(5) Changing the registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark back into the market;
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(6) Intentionally providing facilities for infringing the exclusive rights of others’ trademarks and helping others to infringe the exclusive rights of trademarks;
(7) Causing other damage to the exclusive right to use registered trademarks of others.
2. How to identify trademark infringement
The process of identifying infringement of registered trademark rights has the following three basic steps:
1. Determine the scope of exclusive rights of a registered trademark. The scope of exclusive rights of a registered trademark is the basic basis for determining trademark infringement. All factors considered can be used to determine whether a trademark infringement can be identified or stated to constitute a trademark infringement. All are carried out around the scope of rights of the exclusive right to register a trademark. According to Article 56 of China’s Trademark Law
the exclusive right to register a trademark, to approve It is limited to the registered trademark and the goods approved for use. Obviously, from this provision, the scope of exclusive rights of a registered trademark is limited to the approved registered trademark and the goods approved for use of the registered trademark. This scope is determined by two factors To determine, the first is the approved registered trademark; the second is the goods approved for use by the registered trademark. The combination of the two constitutes the scope of exclusive rights of the registered trademark, which also determines the basis for determining trademark infringement and the object of the alleged infringement. Comparative standards in order to draw a conclusion whether infringement is constituted.
2. Determine the specific object of the alleged infringement. The determination of the object of the alleged infringement consists of two aspects Determined by factors, the first is the trademark accused of infringement, and the second is the goods used by the trademark 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, which provides the basis for the next step with the trademark It lays a solid foundation for comparison of the scope of protection of trademark rights. It is as important as determining the scope of exclusive rights for registered trademarks, and it is another comparison object for determining trademark infringement.
3. Compare the alleged infringement object with the registered trademark and the goods approved to be used by the registered trademark, and determine whether the alleged infringing trademark is the same or similar to the registered trademark, and whether the goods used by the alleged infringing trademark are the same as the registered trademark. Whether the goods used by the registered trademark are of the same category or similar. Through the three basic steps of identifying infringement, especially after comparing the alleged infringement object with the registered trademark and the goods used by the registered trademark, it is determined Can determine whether it constitutes trademark infringement.
According to relevant legal provisions, successfully registered trademarks are protected by law, and trademark infringement refers to the perpetrator. Without the permission of the trademark owner, use a trademark that is identical or similar to a successfully registered trademark on the same or similar goods.
3. How to judge whether a trademark is being used appropriately
1. In addition to using words and graphics that are the same or similar to other people’s trademarks, Whether other explanatory text is added to indicate its "explanatory nature" is the criterion.
2. The judgment standard shall be whether the text and graphics used by the defendant are used as trademarks, or whether the words or graphics are sufficient to identify and distinguish the source of the goods.
3. The judgment criterion shall be whether the significance of the explanatory text is deliberately emphasized when using the explanatory text.
4. Whether the explanatory text is also marked Have your own trademark as the criterion for judgment.
5. Use business practices and the opinions of industry associations as the criterion for judgment.
6. The judgment standard is whether the plaintiff is likely to suffer a decrease in profits and damage to reputation due to the defendant's use.
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