Trademark infringement refers to violating the provisions of the law and using the same or similar logo as the registered trademark on the same or similar goods or services without the consent of the trademark owner, thereby damaging the trademark. act that protects the rights holder’s legitimate rights and interests. my country's trademark law adopts the first-to-register principle, so the protection of trademark rights in my country is for registered trademarks. Although a trademark that has not been registered but has been used and has a certain influence has the right to defend against others' preemptive registration by unfair means according to the provisions of the Trademark Law, it does not enjoy the legal protection provided by the Trademark Law against infringement of the exclusive right to use the trademark.
From the perspective of my country’s trademark law, the constitution of trademark infringement usually includes the following elements:
(1) Illegality. That is, the perpetrator objectively exercised the rights enjoyed by the trademark owner in accordance with the law without permission and without other legal basis.
(2) Damage consequences. Damage has been caused or is about to happen, that is, the infringement has caused damage to the trademark owner or is about to cause damage, which can be manifested as a decrease in product sales, a decrease in profits, or a decrease in trademark reputation.
(3) Causal relationship. There is a causal relationship between the damage and the illegal act, that is, the damage is directly caused by the illegal act.
(4) Fault. Including fault and no-fault. Generally speaking, if an actor illegally uses a trademark that is the same as or similar to a registered trademark, forges or creates without authorization the logo of another person’s registered trademark, or reversely passes off a registered trademark, the subjective fault of the actor shall be the essential factor in determining whether the infringement is infringement. ; As for the act of selling goods with counterfeit registered trademarks, the subjective fault of the perpetrator is not required when determining whether the infringement is infringement. Even if the perpetrator is not at fault, it still constitutes trademark infringement, but he is not liable for compensation, but he still has to bear other corresponding consequences. civil liability.
3. Characteristics of trademark infringement
Compared with ordinary civil infringement, trademark infringement has There are many differences. It is generally believed that trademark rights have three characteristics, namely the intangibility of the rights object, the regional nature of rights protection, and theThe duration of protection is also the difference between trademark rights and other civil rights. Based on these three characteristics, trademark infringement has the following characteristics:
(1) Object of infringement rights Intangibility
The object of trademark infringement is the exclusive right of a registered trademark, and one of its characteristics is intangibility. The object of trademark right is an intangible intellectual creation. It is a kind of intangible information that can exist without its owner. It can be copied and imitated, and can be used by several subjects at the same time. Under normal circumstances, it will not be affected by the trademark. The intellectual property is damaged or lost due to the use by multiple subjects. This characteristic is what distinguishes it from tangible property.
(2) Territoriality of infringement
The territoriality of trademark rights refers to the The exclusive right to use a trademark obtained under the laws of a country is only valid within the territory of that country and will not, in principle, be effective in other countries. Countries around the world, in accordance with the principle of national sovereignty, only protect trademark rights obtained in accordance with their own national laws and do not recognize the validity of trademark rights established by foreign countries in their fields. Since trademark rights are territorial, infringement of trademark rights can only occur within the region where the trademark rights are protected. For example, a trademark registered in China cannot be protected in foreign countries. Since trademark rights have regional characteristics, there are currently two ways to obtain protection for your trademark abroad: one is to register it country by country, that is, register directly with the relevant countries one by one; the other is to register the trademark internationally and submit it to the relevant countries. The state applies for territorial extension.
(3) The temporality of the infringing object
The temporality of trademark rights refers to the timeliness of the registered trademark The exclusive right is protected by law during the registration period. When the registration period expires, the right will automatically terminate. The protection of trademarks under my country's Trademark Law is limited to registered trademarks, and unregistered trademarks are not protected by law. The validity period of a registered trademark is ten years, calculated from the date of approval of registration, but it can be renewed upon expiration. The validity period of each renewal registration is ten years, calculated from the day after the expiration of the previous term of validity of the trademark. The renewal period There is no limit to the number of times,
4. Types of trademark infringement
According to China’s Trademark Law and Trademark Law According to the Implementing Regulations and relevant judicial interpretations issued by the Supreme People's Court, specific acts that infringe upon trademark rights include the following:
(1) Without the permission of the trademark registrant, Use a trademark that is identical or similar to a registered trademark on the same kind of goods or similar goodsSubject act, also known as use infringement. According to the provisions of my country's Trademark Law, using someone else's registered trademark must obtain the consent of the trademark owner and sign a registered trademark license contract, which must then be filed with the Trademark Office. If such behavior is carried out without permission, whether intentionally or negligently, it will constitute an infringement of the exclusive rights of others' trademarks.
(2) The act of selling goods that infringes the exclusive rights of a registered trademark is a trademark infringement in the circulation field, also known as sales infringement. According to the provisions of the Trademark Law, what constitutes a sales behavior that infringes upon the trademark rights of others is no longer based on whether the seller has “knowingly” or “should have known” subjective fault. As long as the perpetrator has the act of selling goods that infringe the trademark right, it will be regarded as an act of infringing the trademark right. However, those who constitute infringement do not necessarily have to bear liability for compensation. The seller will only be liable for compensation if it has subjective faults that it knows or should have known about.
(3) The act of forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks is also called trademark infringement. Specifically, there are three situations: manufacturing and selling the trademark logo without the authorization and entrustment of the trademark owner; although the trademark owner is authorized or entrusted, but exceeding the scope of authorization or entrustment, manufacturing and selling the registered trademark logo, etc.
(4) The act of replacing the registered trademark without the consent of the trademark registrant and putting the goods with the replaced trademark back on the market is called reverse in foreign countries. Counterfeiting. That is, without the consent of the trademark registrant, the perpetrator tears or removes the registered trademark, replaces it with his own or someone else's trademark, and then puts the goods with the replaced trademark into the market, displaying or selling them as his own goods.
(5) Acts that cause other damage to the exclusive right to use registered trademarks of others.
Trademark Law provides flexible provisions when enumerating behaviors that infringe the exclusive rights of registered trademarks. The "Regulations for the Implementation of the Trademark Law" stipulates that any of the following acts shall be considered as infringement of the exclusive right to use a registered trademark as mentioned in Article 52, Item 5 of the "Trademark Law": (1) on the same or similar goods, Marks that are identical or similar to others' registered trademarks are used as trademark names or product decorations to mislead the public; (2) Deliberately providing warehousing, transportation, mailing, concealment and other convenient conditions for infringement of other people's registered trademarks.
5. Identification of various trademark infringements
(1) Illegal use of other people’s registered trademarks of trademark infringement. Refers to the same kind of goods or products without the permission of the trademark registrant.For similar products, use words and graphics that are identical or similar to others’ registered trademarks as product names or product decorations.
The determination of "similar goods" should be based on the goods approved for use in the trademark registration certificate. From the perspective of ordinary consumers, look at whether the two products have common features in terms of functions and uses, and whether the consumer objects and sales channels are the same. The identification of "similar trademarks" should usually be considered from two aspects: first, whether the goods or services used by the two trademarks are the same or similar; second, whether the main parts of the logos of the two trademarks are similar. The specific determination uses the general attention of ordinary consumers as the subjective standard of judgment, and adopts a method that combines overall comparison with comparison of significant parts of the trademark to make a comprehensive judgment. In practice, trademarks are often examined based on three elements: sound, shape, and meaning. That is, whether the pronunciation is the same; whether the appearance is similar, whether it may cause ordinary consumers to misunderstand intuitively; whether the meaning is the same, etc.
(2) Trademark infringement caused by selling products that infringe the exclusive rights of registered trademarks.
When determining this type of trademark infringement, it is not based on whether the seller is at fault. As long as the seller objectively sells goods that infringe the exclusive rights of a registered trademark, It can be concluded that the infringement is established, but the seller will not be liable for compensation on the premise of proving that the goods were obtained legally and indicating the supplier. The so-called "legally obtained goods" refer to goods purchased in a legal trading market in a public manner; the identity of the "supplier" should be true and the counterparty can find it in real life. This standard has not been met. , cannot be considered as "explaining the provider".
(3) Trademark infringement caused by forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks.
Unauthorized manufacturing refers to the trademark printing unit manufacturing trademark logos without authorization or due procedures; counterfeiting refers to deliberately manufacturing counterfeit trademark logos. The manufacture and sale of trademark signs must be carried out in accordance with relevant national and local regulations. It is strictly prohibited to manufacture and sell trademark signs without authorization from the trademark registrant, and it is not allowed to forge trademark signs.
(4) Trademark infringement caused by reverse counterfeiting.
Reverse counterfeiting of registered trademarks means that after the perpetrator legally obtains the goods of the registered trademark owner, he then replaces the registered trademark without his consent, and then replaces the registered trademark with the registered trademark. The act of putting goods into the market. The act of reverse counterfeiting someone else’s registered trademark does not directly use or counterfeit someone else’s registered trademark, but adopts reverse thinking.This method involves borrowing the reputation of others using a registered trademark to promote products bearing one's own trademark, thereby improving the reputation of one's own trademark. Reverse counterfeiting violates the legal principles of fair competition and good faith, uses one's own trademark on other people's goods without authorization, and uses other people's high-quality goods to build one's own brand. The consequences of this are that the trademark owner loses the opportunity to use the trademark to build product credibility. It violates the principle of inseparability of trademarks and commodities, infringes upon the interests of trademark owners, deceives consumers, and disrupts market order.
(5) Trademark infringement caused by dilution of well-known trademarks.
This behavior refers to the use of a trademark that is identical or similar to a well-known trademark by an unauthorized user on his own goods that are different from the well-known trademark. Behavior that causes consumers to misunderstand or confuse the source of goods and their relationship with producers in other aspects, thereby weakening the special appeal and identification of the well-known trademark. The main manifestations of dilution of well-known trademarks are: first, vilifying the relevant well-known trademarks in a certain way; second, darkening the relevant well-known trademarks in a certain way; third, indirect misinterpretation to cause consumers to misunderstand the trademark as the common name of the relevant goods.
(6) The act of registering a domain name with another person’s registered trademark.
There are two main types of trademark infringement: first, registering other people’s well-known trademarks as domain names for commercial purposes; second, registering, Use a domain name that is the same as or similar to the registered trademark of others, intentionally causing confusion with the products and services provided by others, and misleading Internet users to access their websites or other online sites.
(7) The act of registering another person’s registered trademark as a business name.
The prerequisite for the establishment of this type of trademark infringement is that the trademark application comes first and the company registers it later. It is often the behavior of companies taking advantage of the popularity of other people's trademarks to free ride. These An enterprise using someone else's registered trademark as its name misleads consumers and infringes upon the trademark rights of the trademark owner.
Trademark infringement has diverse forms, and the judgment must be based on specific behaviors and in accordance with legal provisions, using a comprehensive analysis of the constituent elements and identification factors of trademark infringement. Ability to make correct determinations.