Trademark and copyright protection
1. The objects and scope of protection are different
The object of copyright is the literary, artistic and scientific works created by the author, which are tangible assets. Its works include the following forms: literary works; oral works; music, drama, folk art, and dance works; art and photographic works; engineering design, product design drawings and their descriptions; maps, schematics and other graphic works; computer software; laws and administrative regulations Other works as specified. The scope of copyright protection refers to the right to publish these works, the right to modify, the right to protect the integrity of the work, the right to use and the right to receive remuneration.
The object of trademark rights is a registered trademark consisting of words, graphics or a combination thereof, which is an intangible asset. The scope of protection of trademark rights is limited to the goods approved for use by the registered trademark.
2. The purpose of protection is different
Copyright protects all aspects of literature, art and science Created works and rights related thereto. Its purpose is to encourage the creation and dissemination of works that are beneficial to society and promote the development and prosperity of socialist culture and science.
A trademark protected by trademark rights is a sign with distinctive features that distinguishes the source of goods or services. The purpose of protection is to encourage producers to ensure product quality and maintain trademark reputation, so as to protect the interests of consumers and promote the development of the socialist commodity economy and fair competition.
3. National competent authorities and applicable laws are different
my country's Copyright Law (October 2001) (First revised edition on July 27) is the basic law governing copyright. The National Copyright Administration is responsible for the management of copyright nationwide.
my country's "Trademark Law" (the second revised edition on October 27, 2001) is the basic law for managing trademarks. The Trademark Office of the State Administration for Industry and Commerce is in charge ofNational trademark registration and management work.
4. Different timeliness
my country's "Copyright Law" stipulates that the author's right of signature, modification The right to protect the integrity of the work has no limit on the period of protection. The protection period of the right to publish, use and receive remuneration for a citizen's work is the life of the author and 50 years after his death; if it is a work of a collaborator, it ends 50 years after the death of the last author to die. For works of a legal person or an unincorporated unit, the copyright (except for the right of authorship) is enjoyed by a legal person or an unincorporated unit for professional works, and the protection period for the right to publish, use and receive remuneration is 50 years. The right to publish, use and receive remuneration for film, television, video and photographic works is protected for a period of 50 years. Works that have not been published within 50 years after their creation are no longer protected.
my country's "Trademark Law" stipulates that the validity period of a registered trademark is 10 years. Upon expiration, the registration can be renewed, and the application can be repeated without restriction, each renewal Registrations are valid for 10 years.
Main principles of copyright law
1. Principles of protecting the rights and interests of authors
The author's creation is the source of the cultural progress of the entire society. Therefore, the law should strengthen the protection of copyright rights and interests and encourage the enthusiasm of authors to create.
2. Encourage the dissemination of works
The country’s formulation of copyright laws is not just to protect the rights and interests of authors , but also to encourage the widespread dissemination of works and prosper the cultural life of society. Therefore, Chapter 4 of my country’s Copyright Law clarifies the protection of the rights of authors and communicators, which is a reflection of encouraging the widespread dissemination of excellent works.
3. The principle of coordination between the author’s interests and the public interests
The interests of the author are essentially the same It is a kind of private interest, and the widespread dissemination of works reflects the needs of the public interest. In order to prevent authors from abusing the rights and interests conferred by copyright law and making it difficult to realize public interests, copyright law also imposes restrictions on the rights of authors, such as Provisions for fair use, legal permission and other systems.
4. The principle of keeping consistent with the development trend of the international copyright system
With the development of communication technology and International EditionWith the development of copyright trade, many works have been spread to other countries with the help of various media, and the protection of copyright is strictly regional. In order to solve the contradiction between the international requirements for the dissemination of works and the regional nature of copyright protection, the international community has formed relevant international copyright protection conventions. my country joined the Berne Convention and the Universal Copyright Convention in 1992.
Basic principles of trademark law
1. Registration principles
Registration is a process of confirming the ownership of exclusive rights to a trademark. There are two basic principles adopted by the trademark laws of various countries in the world to confirm the exclusive right of trademarks, one is the registration principle, and the other is the use principle. The so-called registration principle means that the exclusive right to trademark is obtained through registration. Regardless of whether the trademark is used or not, as long as it complies with the provisions of the Trademark Law and is approved and registered by the trademark authority, the applicant will obtain the exclusive right to the trademark and be protected by law. The principle of use means that trademarks can generate rights through use. According to this principle, the first user can obtain the exclusive right to use a trademark. Article 3 of my country's Trademark Law stipulates: "A trademark approved and registered by the Trademark Office is a registered trademark, and the trademark registrant enjoys the exclusive right to use the trademark and is protected by law." It can be seen that my country's Trademark Law adopts the registration principle.
2. First to apply principle
The first to apply principle is an important principle derived from the registration principle. One of the procedural principles. Since the exclusive right to use a trademark is generated based on registration, and there is not always one person applying for registration of the same or similar trademark on the same or similar goods, then the time at which the application is submitted determines who owns the exclusive right to the trademark. Whoever owns it is an effective method. Therefore, Article 18 of the Trademark Law stipulates: “If two or more applicants apply for registration of the same or similar trademarks on the same goods or similar goods, the one with the earlier application shall be preliminarily reviewed and announced. trademark". This is the first-to-apply principle. According to this principle, even if a trademark has been used for many years, if you do not apply for registration in time, you will lose the opportunity to register because someone else applied first, and you will not get the exclusive right to the trademark. Of course, there are times when the first-to-file principle does not work. When two or more trademarks apply for registration on the same day, other methods must be used to determine the ownership of the exclusive rights. Therefore, Article 18 also stipulates that “if applications are made on the same day, the trademark that has been used first will be initially reviewed and announced, and applications from others will be rejected and will not be announced.” This shows that on the premise that we adopt the first-to-file principle, Also use first as an appropriate supplement.
3. Principle of good faith
The principle of good faith is a basic principle in the field of civil law. Its legal expression is stipulated in Article 4 of the "General Principles of Civil Law": "Civil activities shall follow the principle of good faith..." ."
The principle of good faith requires civil subjects to maintain a balance of interests between the parties in civil activities, as well as a balance between the interests of the parties and the interests of society. In the interest relationship between parties, the principle of good faith requires respecting the interests of others and treating other people's affairs as one's own, so as to ensure that all parties involved in the legal relationship can get the benefits they deserve and not benefit themselves at the expense of others. When special circumstances occur that cause the interest relationship between the parties to be out of balance, adjustments should be made to restore the balance of interests, thereby maintaining a certain social and economic order. In the interest relationship between the parties and society, the principle of good faith requires that parties shall not harm the interests of third parties and society through their civil activities, and must exercise their rights within the legal scope of rights and in a manner consistent with their social and economic purposes.
Although the current Trademark Law does not explicitly use the concept of "good faith", it is reflected in many of its provisions on the establishment, exercise and protection of trademark rights. The basic spirit of the principle of good faith. For example, Articles 6, 31 and 34 of the Trademark Law stipulate that "the conduct of deceiving consumers shall be prevented"; Article 8(8) shall not use "exaggerated propaganda and deceptive" Provisions on the behavior of registering "sexual" words or graphics as trademarks; Article 27 on the behavior of "obtaining registration by deception or other unfair means"; Articles 38, 39 and 40 on the behavior of "obtaining registration by deception or other unfair means"; The provisions on behaviors that should be punished for "infringement of the exclusive right to use registered trademarks" all reflect the spirit of the principle of good faith. Article 25 of the "Trademark Law Implementing Rules" clearly interprets the act of "violating the principle of good faith and registering another person's trademark that is already well known to the public by copying, imitating, translating, etc." as a violation of the Trademark Law. The act of obtaining registration by deception or other unfair means as referred to in paragraph 1 of Article 27. It can be seen that the principle of good faith, as a basic principle in the entire field of civil law, plays an important role in the Trademark Law, although we have not given it due attention in theory as a basic principle of the Trademark Law in the past. , but in practical activities such as the establishment, management and protection of trademark rights, we actually follow it as a basic principle.
4. Principle of voluntary registration
The so-called "principle of voluntary registration" refers to the trademarks used by enterprises Whether to register or not is completely decided by the enterprise. Article 4 of the Trademark Law stipulates that enterprises, institutions and individual industrial and commercial persons shall notIf you need to obtain the exclusive right to use a trademark for the goods you manufacture, process, select or distribute, or for the services you provide, you must apply to the Trademark Office for product trademark or service trademark registration. If an enterprise does not need or does not plan to obtain the exclusive right to use a trademark for the time being, it does not need to register. This registered trademark is allowed to be used, but the user does not have exclusive rights and cannot prohibit others from using it.
Corresponding to the voluntary registration principle is the compulsory registration principle or the comprehensive registration principle. From 1957 to February 1983, my country implemented the principle of comprehensive registration, requiring enterprises to use trademarks for their goods, and all trademarks used must be registered. This principle mainly focuses on the word "management" and is not conducive to revitalizing the economy. At present, except for a few countries that still implement compulsory registration, most countries in the world implement the principle of voluntary registration.
Strictly speaking, our country does not implement the principle of voluntary registration in a pure sense, but still implements the principle of voluntary registration on the trademarks of a very small number of goods. The principle of compulsory registration. Article 5 of the "Trademark Law" stipulates: "Products that must use registered trademarks stipulated by the state must apply for trademark registration. Without approved registration, they may not be sold in the market." Article 7 of the "Trademark Law Implementing Rules" further stipulates: "The State It is stipulated that human medicines and tobacco products announced by the State Administration for Industry and Commerce must use registered trademarks." Compulsory registration of some goods that are closely related to people's health is a feature of my country's Trademark Law.
5. Principles of centralized registration and hierarchical management
Centralized registration and hierarchical management are the trademark laws of our country One of the outstanding features of the system. According to the characteristics of the market economy and trademarks themselves, trademark registration should break the division between departments and regions, and the Trademark Office should be responsible for the review, approval and registration of trademarks. To this end, Article 2 of the Trademark Law stipulates: “The Trademark Office of the State Administration for Industry and Commerce shall be responsible for the registration and management of trademarks nationwide.” This determines that the Trademark Office of the State Administration for Industry and Commerce shall be responsible for handling all trademark registration work nationwide. , no other institution has the right to handle trademark registration, clarifying the principle of centralized registration. Hierarchical management refers to the industrial and commercial administration agencies at all levels carrying out trademark management work in their respective regions in accordance with legal provisions. Implementing hierarchical management is conducive to closely integrating trademark management work with local actual conditions, making trademark administrative work regular and institutionalized.
6. The principle of parallel administrative protection and judicial protection
This is the principle of my country’s trademark legal system Another outstanding feature. The Trademark Law stipulates that trademark infringement, the infringed party may choose to have the case handled by the industrial and commercial administrative authorities, or may file a lawsuit in the People's Court. If the infringed party files a complaint to the industrial and commercial administration authorities, the industrial and commercial administrative authorities may, based on the valid evidence provided by the infringed party or the evidence obtained during its own investigation, order the infringer to immediately stop its infringing behavior, compensate the infringed party for its losses, and also A fine can be imposed at the same time. If the parties concerned are dissatisfied with the penalty decision made by the industrial and commercial administrative authorities, they may file a lawsuit in the People's Court. The principle of parallel protection provides convenience for parties to resolve trademark disputes and is conducive to the protection of exclusive rights to trademarks.
The above six principles run through various provisions of the Trademark Law and form the basis for the protection of trademark rights in my country.
The above is the relevant information compiled by the editor of Legal Savior Network for everyone. To sum up, effective protection of trademark rights and copyrights is more conducive to the maintenance of market transaction order. It can also effectively deal with infringements that often occur in society. But more often than not, not only legal protection is needed, but also citizens' own moral standards need to be improved, which is the fundamental way to solve the problem. If you have any other questions, please feel free to consult online.
