What are the basis for the judicial recognition of well-known trademarks
The judicial recognition of well-known trademarks The basis is provided in the "Interpretations of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving the Protection of Well-known Trademarks", specifically:
Article 1 of this Interpretation The so-called well-known trademarks refer to trademarks that are widely known to the relevant public in China.
Article 2: In the following civil dispute cases, the parties use the well-known trademark as the factual basis. If necessary, determine whether the trademark involved is well-known:
(1) Violation of Article 13 of the Trademark Law A trademark infringement lawsuit filed on the grounds that the company's name is identical or similar to its well-known trademark;
Trademark rights or unfair competition litigation;
(3) Defense or counterclaim litigation in compliance with Article 6 of this Interpretation.
Article 3 In the following civil dispute cases, the People's Court will not examine whether the trademark involved is well-known:
(1) The alleged infringement of trademark rights or unfair competition is not based on the fact that the trademark is well-known;(2) The alleged infringement of trademark rights or unfair competition is not established because it does not meet other requirements stipulated by law.
The plaintiff claimed that the domain name registered and used by the defendant was identical or similar to its registered trademark, and the e-commerce transactions of related goods were conducted through the domain name, which was enough to cause the relevant public to misunderstand. Infringement lawsuits filed shall be handled in accordance with the provisions of item (1) of the preceding paragraph.
Article 4 When determining whether a trademark is well-known, the people's court shall prove its Well-known facts shall be the basis, and all factors specified in Article 14 of the Trademark Law shall be comprehensively considered, except in cases where it is not necessary to consider all the factors specified in this Article to determine that the trademark is well-known according to the specific circumstances of the case.
Article 5 If a party claims that a trademark is well-known, it shall provide the following evidence based on the specific circumstances of the case to prove that its trademark was already well-known when the alleged infringement of trademark rights or unfair competition occurred:
(1) Market share, sales area, profits and taxes, etc. of goods using the trademark;
(2) The duration of continuous use of the trademark;
(3) The The method, duration, extent, financial investment and geographical scope of the trademark’s publicity or promotional activities;
(4) The trademark has been used Records of protection as a well-known trademark;
(5) Market reputation enjoyed by the trademark;
(6) Other facts proving that the trademark is well-known.
Time of use of the trademark involved in the preceding paragraph, scope, method, etc., including continued use before registration approval.
Evidence such as the length of time the trademark has been used, industry rankings, market research reports, market value assessment reports, whether it has ever been recognized as a famous trademark, etc. , the people's court should conduct an objective and comprehensive review based on other evidence that determines the trademark is well-known.
Article 6 The plaintiff filed a civil lawsuit on the grounds that the use of the accused trademark infringed upon its exclusive right to register a trademark. The defendant claimed that the plaintiff’s registration If a trademark is copied, imitated or translated as a previously unregistered well-known trademark, the burden of proof shall be on the fact that the previously unregistered trademark is well-known.
Article 7: Before the alleged infringement of trademark rights or unfair competition occurred, it had been recognized by the people's court or the industrial and commercial administration department of the State Council If the defendant does not dispute the fact that the trademark is well-known, the people's court shall confirm it. If the defendant raises objections, the plaintiff shall still bear the burden of proof of the fact that the trademark is well-known.
Except as otherwise provided in this interpretation, the People's Court does not apply the self-admission rules for evidence in civil litigation to the fact that a trademark is well-known.
Article 8: For a trademark that is widely known to the public in China, the plaintiff has provided basic evidence that the trademark is well-known, or If the defendant does not object, the people's court shall determine the fact that the trademark is well-known.
Article 9 is enough to cause the relevant public to misunderstand the source of the goods using the well-known trademark and the accused trademark, or is enough to cause the relevant public to misunderstand It is believed that if there is a specific connection between the operator using a well-known trademark and the accused trademark, such as licensed use or affiliated enterprise relationship, it falls under the category of "likely to cause confusion" as stipulated in Article 13, Paragraph 1 of the Trademark Law.
It is enough to make the relevant public think that the accused trademark has a considerable degree of connection with the well-known trademark, thereby weakening the distinctiveness of the well-known trademark and derogating the well-known trademark. The market reputation of a trademark, or the improper use of the market reputation of a well-known trademark, falls under the category of "misleading the public, causing the interests of the registrant of the well-known trademark to be potentially damaged" as stipulated in Article 13, Paragraph 2 of the Trademark Law.
Article 10: If the plaintiff requests to prohibit the defendant from using a trademark or business name that is the same as or similar to the plaintiff's well-known registered trademark on dissimilar goods, the people's court shall Based on the specific circumstances of the case, the judgment will be made after comprehensively considering the following factors:
(1) The degree of distinctiveness of the well-known trademark;
(2) The degree of awareness of the well-known trademark among the relevant public who use the goods with the accused trademark or company name;
(3) The degree of connection between the goods using the well-known trademark and the goods using the accused trademark or company name;
(4) Other related factors.
Article 11 The registered trademark used by the defendant violates the provisions of Article 13 of the Trademark Law and copies, imitates or translates the plaintiff's well-known trademark , if it constitutes an infringement of trademark rights, the People's Court shall, based on the plaintiff's request, make a judgment in accordance with the law to prohibit the defendant from using the trademark. However, if the defendant's registered trademark has any of the following circumstances, the People's Court will not support the plaintiff's request:
(1) The time limit for requesting revocation stipulated in Paragraph 2 of Article 41 of the Trademark Law has exceeded;(2) When the defendant applied for registration, the plaintiff’s trademark was not well-known.
Article 12: The unregistered well-known trademarks requested by the parties for protection fall under Articles 10, 11 and 10 of the Trademark Law. Article 2 stipulates that if a trademark cannot be used or registered, the people's court will not support it.
Article 13 In civil dispute cases involving the protection of well-known trademarks, the people's court's determination that a trademark is well-known shall only be regarded as the facts of the case. and reasons for the judgment shall not be included in the main text of the judgment; if the trial is concluded through mediation, the fact that the trademark is well-known shall not be recognized in the mediation letter.
Article 14 If the previous judicial interpretation of this court is inconsistent with this interpretation, this interpretation shall prevail.
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