What is the difference between a franchisee’s trademark breach and trademark infringement
The franchisee’s violation of the trademark use agreement does not necessarily constitute a trademark infringement.
The distinction between franchisee’s liability for breach of contract and liability for trademark infringement
In the franchise contract, the trademark licensing terms generally include The period of licensed use, geographical scope, how to use the trademark, etc. The franchisee shall regulate the use of the licensed registered trademark within the scope of the franchise contract. However, in practice, the franchisee often needs to go beyond the scope of the contract out of self-interest. The situations mainly include: (1) using the franchisor's registered trademark beyond the authorized product scope or geographical scope; (2) producing without permission. Or purchase goods from a third party and sell them with the franchisor’s registered trademark attached; (3) Continue to use the franchisor’s registered trademark after the franchise contract is terminated.
Among the above-mentioned acts committed by the franchisee, the first This kind of behavior violates the agreement in the franchise contract on the scope of goods or geographical scope for use of the trademark, and therefore constitutes a breach of contract. There is still controversy as to whether this behavior constitutes trademark infringement
Article 57 of the Trademark Law: Anyone who commits any of the following acts shall infringe the exclusive right to use a registered trademark:
(1) Using the same trademark as the registered trademark on the same product without the permission of the trademark registrant;
(2) Using its registered trademark on the same product without the permission of the trademark registrant Similar trademarks, or using a trademark that is identical 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 manufacturing registered trademarks of others without authorization or selling forged or unauthorized registered trademarks;
(5) Without the consent of the trademark registrant, replace the registered trademark and put the goods with the replaced trademark back into the market Market;
(6) Intentional infringement of other people’s trademarks Providing facilities for the exclusive use of trademarks and helping others to infringe the exclusive rights of trademarks;
(7) Causing other damage to others’ exclusive rights to registered trademarks.
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