What is a trademark dispute and what are the ways to resolve trademark disputes
Trademark disputes are also called trademark dispute cases. Litigation based on whether trademark infringement is constituted and how compensation should be compensated when trademark infringement is established. If there is any infringement of the exclusive right to use a registered trademark as listed in Article 57 of the Trademark Law, and a dispute arises, it shall be resolved through negotiation between the parties; if the parties are unwilling to negotiate or the negotiation fails, there are two solutions:
1. Administrative solutions
(1) Administrative jurisdiction of trademark infringement cases, It can be either the industrial and commercial administrative department where the infringer is located, or the industrial and commercial administrative department where the infringement occurred.
(2) After receiving trademark infringement cases, the industrial and commercial administration departments at or above the county level shall, through investigation and evidence collection, and on the premise of determining the facts, stop the infringement, and based on The infringer shall determine the facts of the violation and the seriousness of the circumstances, and impose administrative penalties. Specific punishment measures include:
1. Order to stop sales immediately;
2. Accept invitations and destroy them Identification of infringing trademarks;
3. Eliminate infringing trademarks on existing trademarks;
4. Accept invitations Molds, printing plates or other tools used directly for trademark infringement;
5. Order and supervise the destruction of items;
6. Depending on the circumstances, a fine of not more than 50% of the illegal business volume or not more than five times of the profits obtained from infringement shall be imposed, and the infringer may be ordered to compensate the infringed party for the losses.
(3) If the commercial administrative agency believes that the exclusive right to use a registered trademark has been infringed, it may exercise the following powers when investigating and collecting evidence:
1. Ask aboutParty;
2. Inspect items related to infringement activities and, if necessary, order them to be sealed;
">3. Investigate behaviors related to infringement activities;
4. Check and copy contracts, account books and other business materials related to infringement activities.
Choosing the industrial and commercial administrative department to handle trademark infringement cases has its own unique advantages: the personnel handling the case are familiar with the business, the handling procedures are simple, and the case is concluded quickly, thus saving time Save effort. However, its obvious shortcoming is that the administrative decision has no final effect. If the parties are dissatisfied with the handling by the industrial and commercial administrative organs, they can still file a lawsuit in the People's Court.
2. Litigation resolution methods
(1) Jurisdiction. Trademark infringement cases may be under the jurisdiction of the People's Court of the place where the infringement occurred or where the infringer is located. In this regard, the infringed party can freely choose the place where the infringement occurred or the people's court where the infringer is located to file a lawsuit. At the same time, due to the complexity of trademark infringement cases, the Supreme People's Court currently designates the Intermediate People's Court to have jurisdiction.
(2) The People’s Court generally adopts civil sanctions in handling trademark infringement cases. Based on the right to request prohibition, loss compensation, return of unjust benefits, and restoration of reputation exercised by the infringed party, the people's court may adopt the following methods individually or in combination:
1. Order the infringer to immediately stop the infringement. You can destroy items that constitute infringement, dismantle equipment used in infringement, and invite tools, templates, etc. that are directly used for infringement;
2. Eliminate the impact, Restore the reputation of the infringed party, such as ordering the infringed party to publish an apology statement in newspapers and magazines to restore the business reputation of the infringed party;
3. Compensate the infringed party For the infringer's losses, the compensation amount is calculated based on the profits gained by the infringer due to the infringement during the infringement period or the losses suffered by the infringed party due to the infringement during the infringement period. In addition, the infringer should also compensate the infringer for the expenses incurred by the infringed party in investigating, collecting evidence, and hiring litigation or non-litigation agents;
4. Except In addition to the above main methods, the People's Court can also take measures such as admonishment, ordering repentance, confiscation of illegal income, fines or detention.
(3) The litigation settlement of trademark infringement cases shall be subject to civil litigation procedures.
Prosecution. The person whose trademark has been infringed must file a lawsuit with the People's Court in accordance with the law before launching a lawsuit. When a trademark infringer sues, you must pay attention to:
Submit a lawsuit to the People's Court, and submit copies according to the number of defendants; the lawsuit must have a clear defendant, that is, the trademark infringer, There is a specific request for prosecution, such as requesting to stop the infringement and requesting a certain amount of compensation. There are facts and reasons. That is, when the lawsuit is filed, the relevant supporting documents of the registered trademark and evidence materials proving the infringement of the infringement should be attached; the lawsuit must belong to the people The scope of the court's acceptance of the case and the management of the People's Court subject to the lawsuit, and the court that is most beneficial to the party is selected to sue within the scope of the law; the lawsuit must be filed within the statute of limitations stipulated by law, that is, since the trademark owner knows or should know that the trademark is exclusive File a lawsuit within 2 years from the date when your rights are infringed upon by others. In addition, trademark infringement cases are relatively complex, and the parties may entrust 1 to 2 agents to participate in the litigation. Choosing someone from a trademark agency or a lawyer who is proficient in trademark law as your litigation agent is very important to effectively protect the legitimate rights and interests of the parties.
Trial. The people's court shall file a case and accept a lawsuit that meets the legal requirements after review. When hearing a trademark infringement case, it must be conducted in accordance with legal procedures. Through the trial of trademark infringement cases, the People's Court ascertains the facts of the case, distinguishes right from wrong, and clarifies responsibilities. On this basis, it makes a judgment on the focus of the dispute between the two parties, namely whether it constitutes infringement, whether compensation should be paid, and the amount of compensation.
Property preservation. Property preservation is a very important issue in trademark infringement litigation. Taking preservation measures correctly and in accordance with the law is of great significance to safeguarding the legitimate rights and interests of the infringed party. Therefore, property preservation is often used in trademark infringement lawsuits. Property preservation means that in order to promptly and effectively protect the legitimate rights and interests of closely related persons or parties, the People's Court shall, before litigation or making a judgment, upon the application of closely related persons or parties, or on its own initiative and in accordance with its authority, take measures to restrict the disposal of relevant property or to Mandatory measures for transfer. Property preservation includes litigation property preservation and pre-litigation property preservation, which are applicable to different legal situations.
The conditions applicable to litigation property preservation are:
1. The case has been accepted by the court, but has not yet been Make a judgment;
2. This case contains specific payment content, and due to the behavior of one of the parties or other reasons, it is possible that the future judgment will not be enforceable or difficult to enforce., such as the infringer transfers, conceals, destroys, sells relevant items without authorization;
3. The applicant provides a guarantee (the people's court makes a property preservation ruling ex officio) , the parties do not need to provide guarantee).
The applicable conditions for pre-litigation property preservation are:
1. During the pre-litigation period, there is an emergency situation, failure to take immediate preservation measures will cause irreparable losses to the applicant's interests;
2. The applicant must file an application, and the people's court cannot take the initiative to comply have the authority to make a preservation ruling;
3. The applicant must provide a guarantee;
4. A lawsuit must be filed within 15 days after the court takes preservation measures, otherwise the court will terminate the pre-litigation property preservation in accordance with the law.
There are certain scope restrictions for applicants to apply for property preservation. The scope of the request must be property directly related to the financial affairs of the case or the substantive rights requested by the applicant to be protected, and cannot involve the personal rights of the respondent or the property and personal rights of persons other than the respondent. In trademark infringement cases, the scope of application for preservation includes the infringer’s funds, the manufacturing, storage, and transportation of the infringing products, machinery, equipment, tools, and the infringing products themselves. Property preservation can take the form of sealing, detaining, freezing, etc.
The party concerned shall apply for property preservation in strict accordance with the law. If an application error causes losses to the respondent, the applicant shall be responsible for compensation.
Execute. Enforcement is the final stage of the litigation process and is also an important way for the rights and interests of the parties who win the lawsuit to be realized. According to the provisions of the Trademark Law, if the party concerned is dissatisfied with the decision of the industrial and commercial administration department to impose a fine, he may file a lawsuit with the People's Court within fifteen days of receiving the notice; if he deceives and fails to prosecute and perform, the relevant industrial and commercial administrative department shall apply to the People's Court for deception. Court enforced. If the people's court finds that there is indeed an error in the decision, it will not execute the decision and notify the administrative agency with the approval of the president; if there is no error, it will enforce the decision and the party concerned will pay a fine. If the party concerned does not voluntarily pay the fine, the people's court may issue a notice, forcibly transfer the fine from the bank, or adopt enforcement measures such as seizure and auction. Compensation fees for trademark infringement are also enforceable.
