What should I do if a registered trademark infringes upon prior copyright?
If a registered trademark infringes upon First, copyright is generally invalidated. If losses are caused, you can sue for compensation.
If the actual loss is difficult to determine, it can be determined based on the benefits obtained by the infringer due to the infringement; if the loss of the right holder or the benefits obtained by the infringer is difficult to determine, refer to The multiple of the trademark license fee is reasonably determined. For malicious infringement of trademark exclusive rights and the circumstances are serious, the amount of compensation may be determined to be not less than one time but not more than five times the amount determined according to the above method. The amount of compensation should include the reasonable expenses paid by the right owner to stop the infringement.
For works within the copyright protection period, if the name of the work, the names of the characters in the work, etc. are relatively well-known, it is easy to use them as trademarks on related products. If it causes the relevant public to mistakenly believe that it has the permission of the right holder or has a specific connection with the right holder, and the party claims that it constitutes prior rights and interests, it may be determined that the registered trademark constitutes an infringement of prior copyright or other rights.
Trademark registration is the prerequisite for legal protection of a trademark and the legal basis for determining the exclusive right to use a trademark. Once a trademark user is approved for trademark registration, it means that it has obtained the exclusive right to the trademark and is protected by law. There is a conflict if the trademark is registered first and the copyright is later, because copyright cannot compete with the prior rights of a trademark. The prior rights protected by the Trademark Law refer to the rights that existed and were legal and valid before the trademark was applied for registration.
What should I do if my trademark registration infringes upon prior copyright? If you need more experienced advice or want to find a local lawyer, there are two ways:
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