This term is provided by the "Rule of Law Encyclopedia" project leading group office of China Law Society.
Trademark right is the right enjoyed by civil subjects to use specific marks exclusively for the purpose of distinguishing sources in specific goods or services.The ways of obtaining trademark rights include obtaining trademark rights through use and trademark rights through registration.Obtaining trademark right through registration is also called registered trademark exclusive right.In China, trademark registration is the basic way to obtain trademark rights.Article 3 of the Trademark Law stipulates that "a trademark approved and registered by the Trademark Office is a registered trademark, and the trademark registrant has the exclusive right to use the trademark, which is protected by law."
Chinese name
Trademark right
Foreign name
trademark right
Nature
intangible assets
Relevant laws
Trademark Law
Meaning
The exclusive right of the trademark owner to his trademark
Constituent elements
Text, graphics, letters, numbers, three-dimensional signs, color combinations, sounds, etc
oneThe Trademark Law of the People's Republic of China (revised in 2019), issued by the Standing Committee of the National People's Congress, covers: in order to strengthen trademark management, protect the exclusive right to use trademarks, urge producers and operators to ensure the quality of goods and services, maintain the reputation of trademarks, protect the interests of consumers, producers and operators, and promote the development of the socialist market economy.
twoRegulations for the Implementation of the Trademark Law of the People's Republic of China (revised in 2014), issued by the State Council, contains specific provisions for the implementation of the Trademark Law.
threeThe Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases (revised in 2020), issued by the Supreme People's Court, and its content is to correctly try trademark dispute cases.
fourProvisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Concerning the Authorization and Determination of Trademark Rights (revised in 2020), issued by the Supreme People's Court, the content of which is to correctly hear administrative cases concerning trademark authorization and determination of rights.
fiveProvisions of the Supreme People's Court on Several Issues Concerning the Trial of Civil Dispute Cases Involving the Conflict between Registered Trademarks, Enterprise Names and Prior Rights (revised in 2020), issued by the Supreme People's Court, which aims to correctly try civil dispute cases involving the conflict between registered trademarks, enterprise names and prior rights.
sixInterpretation of the Supreme People's Court on the Jurisdiction and Scope of Law Application in the Trial of Trademark Cases (revised in 2020), issued by the Supreme People's Court, content: the jurisdiction and scope of law application in the trial of trademark cases by the People's Court.
sevenThe Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well known Trademarks (revised in 2020), issued by the Supreme People's Court, covers the protection of well-known trademarks according to law in the trial of civil dispute cases involving trademark infringement.
Rights subject
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1. Concept of trademark right subject
The subject of trademark right (trademark owner) refers to the natural person, legal person or other organization that enjoys the trademark right to the commercial mark for distinguishing goods or services in accordance with the Trademark Law.
2. Type of trademark right subject
According to the form of the subject, the subject of trademark right is divided into natural person, legal person and other organizations.According to the Trademark Law, if a natural person, legal person or other organization needs to obtain the exclusive right to use a trademark for its goods or services in its production and business activities, it shall apply to the Trademark Office for trademark registration.Two or more natural persons, legal persons or other organizations may jointly apply to the Trademark Office for the registration of the same trademark and jointly enjoy and exercise the exclusive right to use the trademark.
The subject of trademark right can be divided into original subject and successor subject according to the way of obtaining trademark right.The original subject is the trademark registration applicant approved and registered by the trademark administration department, and the successor subject is the subject who obtains the trademark right through inheritance, assignment, etc.
Object of right
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1. Concept of trademark
The object of trademark right is trademark, which is a mark used by operators to distinguish their own goods or services from those of others.The main function of trademark is source identification.Operators use trademarks on their own goods or services, so that consumers can recognize and remember their own goods or services through trademarks, understand the quality and quality characteristics of their own goods or services, and establish their own reputation. Consumers can choose their favorite goods or services through trademarks.In addition, trademarks can urge trademark users to strive to maintain and improve the quality of goods and services. Therefore, trademarks have another derivative function, that is, the quality assurance function.
Any sign that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numbers, three-dimensional signs, color combinations and sounds, as well as the combination of the above elements, can be applied for registration as a trademark.
2. Type of trademark
According to different standards, trademarks can be divided into different categories.
(1) Trade mark and service mark
Commodity trademark refers to the trademark used by commodity producers on the commodities they produce or manage.The use of a trademark on a commodity means that the trademark is affixed to the commodity or to the package, container, transaction document and other papers of the commodity, and the trademark is also used in advertising, commodity exhibitions and other commercial activities.
A service trademark is a trademark used by an operator to distinguish its own services from those of others. The use of a service trademark includes: direct use in services, such as service brochures, photos of service places, staff clothing and other documents related to services;Use of trademarks in advertisements.
(2) Collective trademark and certification trademark
A collective trademark refers to a sign registered in the name of a group, association or other organization and used exclusively by members of the organization in commercial activities to indicate the user's membership in the organization.The role of a collective trademark is to show users that enterprises using the trademark have common characteristics.An enterprise that uses a collective trademark has the right to use other trademarks that it owns exclusively at the same time.
A certification trademark refers to a mark that is controlled by an organization that has the ability to supervise a certain kind of goods or services and used by an entity or individual other than the organization for its goods or services to prove the origin, raw materials, manufacturing method, quality or other specific quality of the goods or services.The significance of certification trademark is to show consumers that their products meet the specified conditions or standards.
It indicates that a commodity originates from a certain region, and the specific quality, reputation or other characteristics of the commodity, which are mainly determined by the natural or human factors of the region, are geographical indications. It can be registered as a collective trademark or certification trademark.
(3) Joint and defensive trademarks
A joint trademark refers to a trademark owner who registers several similar trademarks on the same goods, or registers several identical or similar trademarks on different goods of the same category. These mutually similar trademarks are called joint trademarks.Among these trademarks, the first registered or mainly used is the main trademark, and the rest are joint trademarks.
The defensive trademark refers to the same trademark registered by the same civil subject on several goods of different categories.The main trademark is registered first, and other trademarks are defensive trademarks.
Where a registered trademark is assigned, the trademark registrant shall assign its similar trademark registered on the same kind of goods, or its identical or similar trademark registered on similar goods.Therefore, when the main trademark is transferred, the joint trademark and the defensive trademark should be transferred together to avoid confusion among consumers.
(4) Registered and unregistered trademarks
A registered trademark refers to a trademark that has been approved and registered by a trademark administration agency according to law.The registration of a trademark shall meet the legal conditions and go through the legal procedures.In countries with a trademark registration system, once a trademark is registered, it gains the exclusive right to use the registered trademark and the prohibition right to exclude others from using the same or similar trademark as its registered trademark on the same or similar goods.
An unregistered trademark refers to a trademark that has not been registered by the competent national authority, and the user does not have the exclusive right to use the trademark.Unregistered trademarks do not enjoy the exclusive right to use trademarks, but they can be used and enjoy the impact and reputation of their use, which are protected by the Trademark Law and the Anti Unfair Competition Law.
(5) Well known trademark
A well-known trademark refers to a trademark that is well-known to the relevant public in China.The Provisions on the Recognition and Protection of Well known Trademarks points out that the relevant public includes consumers related to certain types of goods or services marked by the use of trademarks, other operators producing the aforementioned goods or providing services, and sellers and relevant personnel involved in distribution channels.
Compared with general trademarks, well-known trademarks have their particularity. General trademarks can only be protected in the same kind of goods or services, while registered well-known trademarks can not only be protected in the same kind, but also can be protected across categories.
Acquisition of rights
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（1） Principle of trademark acquisition
1. Principle of use acquisition
The principle of acquisition of use means that the basis for obtaining trademark rights is that the trademark is actually used in commercial activities, and registration is only the preliminary evidence to prove the enjoyment of trademark rights.This principle holds that only when a trademark is truly used, can it play its role and function, and there is no need to protect trademark rights for unused trademarks.The United States adopts the principle of trademark acquisition.
2. Principle of obtaining registration
The principle of obtaining registration means that the basis for obtaining trademark rights is the approval and registration of the trademark administrative department, and unregistered trademarks cannot enjoy the protection of trademark rights.The principle of obtaining registration is easy to induce malicious trademark registration, but its advantages lie in safety and efficiency.China adopts the principle of obtaining registration, but at the same time, the trademark legislation also constantly strengthens the protection of unregistered trademarks.
（2） Conditions for trademark acquisition
To be registered, a trademark must meet the conditions prescribed by law.The Trademark Law of China not only stipulates the constituent elements and registration conditions of trademarks from the positive side, but also lists the signs that cannot be used as trademarks and cannot be registered as trademarks from the negative side.Trademark registration should have four elements: legality, distinctiveness, non functionality, and non conflict with the prior rights and interests of others.
1. Legality
Legitimacy includes two requirements. On the one hand, it means that the constituent elements of a trademark sign should comply with Article 8 of the Trademark Law. Any sign that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numbers, three-dimensional signs, color combinations and sounds, and the combination of the above elements,Can apply for registration as a trademark.On the other hand, the signs used as trademarks shall not be those that are not allowed to be used as trademarks according to the law.
Article 10 of the Trademark Law stipulates that the following signs shall not be used as trademarks: (1) those identical with or similar to the State name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, medals, etc. of the People's Republic of China, as well as those identical with the names and signs of the central state organs, the names of specific places where they are located, or the names and graphics of landmark buildings;（2） Identical with or similar to the national name, national flag, national emblem, military flag, etc. of a foreign country, except with the consent of the government of that country;（3） It is identical with or similar to the name, flag, emblem, etc. of an intergovernmental international organization, except with the consent of the organization or not easy to mislead the public;（4） It is the same as or similar to the official signs and inspection marks indicating the implementation of control and guarantee, except those authorized;（5） Those identical with or similar to the names and symbols of the Red Cross and the Red Crescent;（6） Ethnic discrimination;（7） It is deceptive and easy to cause the public to misunderstand the quality and other characteristics of the goods or the origin of the goods;（8） Harmful to socialist morality and customs or having other adverse effects.The geographical names of administrative divisions at or above the county level or foreign geographical names known to the public shall not be used as trademarks.However, the place name has other meanings or is a part of a collective trademark or certification trademark;Registered trademarks using place names shall continue to be valid.
2. Significance
The distinctiveness of a trademark means that the trademark logo has distinctive features that can distinguish the goods or services of the user from those of others.
Article 9 of the Trademark Law stipulates that a trademark applied for registration shall have distinctive features to facilitate identification, and shall not conflict with the legal rights previously obtained by others.The trademark registrant has the right to indicate "registered trademark" or a registration mark.
Article 11 of the Trademark Law stipulates that the following marks shall not be registered as trademarks: (1) only the general name, figure and model of the goods;（2） Directly indicating the quality, main raw materials, function, use, weight, quantity and other characteristics of the commodity;（3） Other lack of obvious characteristics.The marks listed in the preceding paragraph may be registered as trademarks if they have been used to obtain distinctive features and are easy to identify.
3. Three dimensional signs shall not be functional
The non functionality of a trademark means that a functional trademark may not be registered as a trademark, and the function of a trademark should be protected by a patent. China's trademark law prohibits the registration of three-dimensional signs with practical and aesthetic functions as trademarks.Article 12 of the Trademark Law stipulates that where a three-dimensional sign is used to apply for the registration of a trademark, the shape of the commodity produced only by the nature of the commodity itself, the shape of the commodity necessary for obtaining technical effects, or the shape that makes the commodity have substantial value, shall not be registered.
4. Do not conflict with others' prior rights and interests
The prior rights protected by the Trademark Law refer to the legal and effective rights that existed before the application for trademark registration.At the same time, when different subjects apply for the same similar trademark on the same day on the same similar goods, or apply for the registration of a trademark that was used earlier by others and has some influence by improper means, the Trademark Law also provides protection for the trademark that was used earlier.Article 9 of the Trademark Law stipulates that a trademark applied for registration shall have distinctive features to facilitate identification, and shall not conflict with the legal rights previously obtained by others.Article 28 stipulates that an application for a registered trademark that conflicts with the earlier registered trademark shall be rejected.Article 32 stipulates that the application for trademark registration shall not damage the existing prior rights of others, nor shall it preemptively register the trademarks that have been used by others and have a certain impact by improper means.Prior rights include the prior rights stipulated in the Trademark Law and other laws, such as the right to name, portrait, copyright and design of others.
（3） Objection to trademark
The objection to a trademark refers to the interested party or the public's objection to the trademark preliminarily approved and announced by the Trademark Office. If they think that the trademark law is illegal, they can raise an objection to the Trademark Office.
1. Reasons for objection
(1) Absolute reason
Violating Article 4 of the Trademark Law and not maliciously applying for registration for the purpose of use
2. Violating Article 10 of the Trademark Law by registering a mark that is prohibited from being used as a trademark as a trademark
3. Violating Articles 11 and 20 of the Trademark Law by registering marks that are prohibited from being registered as trademarks as trademarks
4. In violation of Paragraph 4 of Article 19 of the Trademark Law, the trademark agency acts beyond its scope
2) Relative reason
Violating the second and third paragraphs of Article 13 of the Trademark Law, infringing on unregistered well-known trademarks or registered well-known trademarks
2. In violation of Article 15 of the Trademark Law, agents or representatives rush to register trademarks or rush to register trademarks due to contractual business relations
3. In violation of the first paragraph of Article 16 of the Trademark Law, the trademark incorrectly indicates geographical indications and misleads the public
4 Violating Article 30 of the Trademark Law and being identical or similar to the registered or preliminarily approved trademark
5 Violation of Article 31 of the Trademark Law and the principle of first application or first use
Article 32 of the Trademark Law, impairing the prior rights of others or illegally registering unregistered trademarks with certain influence
2. Consequences of objection
Where an objection is raised against a trademark that has been preliminarily approved and announced, the Trademark Office shall hear the objector and the objected state facts and reasons, and, after investigation and verification, make a decision on whether or not to grant registration within twelve months from the date of expiration of the public announcement, and notify the objector and the objected in writing.
(1) Registration approved
Where the Trademark Office makes a decision to approve the registration, it shall issue a trademark registration certificate and publish it.If the opponent is not satisfied, he may, in accordance with the provisions of Articles 44 and 45 of the Trademark, request the Trademark Review and Adjudication Board to declare the registered trademark invalid.
(2) Not registered
If the Trademark Office makes a decision not to register, and the objected is not satisfied, it may, within 15 days from the date of receiving the notification, apply to the Trademark Review and Adjudication Board for reexamination.The Trademark Review and Adjudication Board shall make a reexamination decision within twelve months from the date of receiving the application, and notify the objector and the objected in writing.If the extension is necessary under special circumstances, it may be extended for six months upon approval by the administrative department for industry and commerce under the State Council.If the respondent is not satisfied with the decision of the Trademark Review and Adjudication Board, he may bring a suit in the people's court within 30 days from the date of receiving the notice.The people's court shall notify the objector to participate in the proceedings as a third party.
Content of rights
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The content of trademark right refers to the rights and obligations that the trademark owner enjoys according to law.According to the Trademark Law, the trademark owner has the following rights:
1. Exclusive right of use
The trademark owner has the right to use the trademark approved and registered in the goods and services approved by him. Without the permission of the trademark owner, no one can use the same or similar trademark in the same or similar goods and services.
2. Trademark disposal right
The trademark owner has the right to dispose of its registered trademark by means of licensing, transfer, pledge and investment according to its own will.
3. Right to use registered mark
The trademark owner has the right to indicate the word "registered trademark" or the registration mark when using a registered trademark“®”。
4. Term of validity
Article 39 of the Trademark Law stipulates that the period of validity of a registered trademark is ten years, counting from the date of approval of the registration.Article 40 stipulates that if it is necessary to continue the use of a registered trademark upon the expiration of its validity, the trademark registrant shall, within twelve months before the expiration, go through the formalities for renewal in accordance with the provisions;In case of failure to handle the matter during this period, a six-month grace period may be granted.The term of validity of each renewal of registration is ten years, counting from the next day after the expiration of the last term of validity of the trademark.If no renewal formalities are gone through at the expiration of the time limit, the registered trademark shall be cancelled.
The Trademark Office shall publish the trademark whose registration has been renewed.
Invalidation and revocation
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1. Invalidation of trademarks
The invalidation of a registered trademark refers to the system whereby the trademark office declares the invalidation of a registered trademark in accordance with legal procedures that violates the provisions of the Trademark Law and should not be registered.Specifically, it refers to the system under which the Trademark Office, on its own initiative, declares the registered trademark invalid, or the Trademark Review and Adjudication Board, on its application, declares the registered trademark invalid, if the registered trademark has been registered due to violation of the relevant provisions of the Trademark Law or infringement of the rights and interests of others.
A trademark that has been declared invalid shall be invalid from the beginning, that is, it shall not have legal effect from the beginning.
(1) The invalidity of registered trademarks can be divided into two types:
1) Absolutely invalid situation
Violating Article 4 of the Trademark Law and not maliciously applying for registration for the purpose of use
2. Violating Article 10 of the Trademark Law by registering a mark that is prohibited from being used as a trademark as a trademark
3. Violating Articles 11 and 20 of the Trademark Law by registering marks that are prohibited from being registered as trademarks as trademarks
4. In violation of Paragraph 4 of Article 19 of the Trademark Law, the trademark agency acts beyond its scope
5 Obtaining registration by deception or other improper means
2) Relatively invalid situation
Violating the second and third paragraphs of Article 13 of the Trademark Law, infringing on unregistered well-known trademarks or registered well-known trademarks
2. In violation of Article 15 of the Trademark Law, agents or representatives rush to register trademarks or rush to register trademarks due to contractual business relations
3. In violation of the first paragraph of Article 16 of the Trademark Law, the trademark incorrectly indicates geographical indications and misleads the public
4 Violating Article 30 of the Trademark Law and being identical or similar to the registered or preliminarily approved trademark
5 Violation of Article 31 of the Trademark Law and the principle of first application or first use
Article 32 of the Trademark Law, which damages the prior rights of others or illegally registers unregistered trademarks with certain influence
(2) Effect of declaring a registered trademark invalid
1) Trademark right is invalid from the beginning
Paragraph 1 of Article 47 of the Trademark Law stipulates that a registered trademark that has been declared invalid in accordance with the provisions of Articles 44 and 45 of this Law shall be announced by the Trademark Office, and the exclusive right to use the registered trademark shall be deemed as non-existent from the beginning.
2) The Principle of Compensation for Malicious Registration and the Principle of Returning Evidently Unfair Registration
The second paragraph of Article 47 of the Trademark Law stipulates that decisions or rulings declaring registered trademarks invalid, judgments or rulings on trademark infringement cases made and executed by the people's courts before the declaration of invalidityThe mediation statement, the decision made and executed by the administrative department for industry and commerce on the handling of trademark infringement cases, and the trademark transfer or use license contract that has been executed are not retroactive.However, compensation shall be made for the losses caused to others due to the malicious intent of the trademark registrant.
The third paragraph of Article 47 of the Trademark Law stipulates that if the compensation for trademark infringement, trademark transfer fee and trademark use fee are not returned in accordance with the provisions of the preceding paragraph, which clearly violates the principle of fairness, they shall be returned in whole or in part.
3) Invalidation of registered trademarks on some designated commodities only
Article 68 of the Regulations for the Implementation of the Trademark Law stipulates that the Trademark Office and the Trademark Review and Adjudication Board shall cancel or declare invalid a registered trademark. If the reasons for the cancellation or declaration of invalidity only extend to some designated goods, the trademark registration used on that part of designated goods shall be cancelled or declared invalid.
4) One year transition period from the date of invalidation
Article 50 of the Trademark Law stipulates that if a registered trademark is revoked, declared invalid, or will not be renewed at the expiration of the period, the Trademark Office shall, within one year from the date of revocation, declaration of invalidity, or cancellation, not approve an application for trademark registration that is identical with or similar to the trademark.
The purpose of setting up a one-year transition period after the cancellation, invalidation or cancellation of a registered trademark is that the registered trademark has been used before the termination of its rights and has had a certain impact on the market. If the same or similar trademark registration is allowed immediately when its goods or services have not completely withdrawn from the market, so that goods or services with a new trademark can enter the market,May cause consumer confusion.In order to maintain the market economic order and protect the interests of consumers, it is necessary to make certain restrictions on trademark registration applications that are identical with or similar to the trademark within a certain period of time.Therefore, the Trademark Law stipulates a transition period of one year. Within one year from the date of revocation, invalidation or cancellation, the Trademark Office will not approve the application for trademark registration that is identical with or similar to the trademark, and if it exceeds one year, it shall approve it according to law.
2. Cancellation of trademark
After the trademark is registered, if the trademark is not used for three consecutive years without proper reasons, or is significantly degraded, or the registrant changes the registered trademark or registration matters without authorization, the registered trademark may be revoked.
(1) Not used for three consecutive years
Article 49 of the Trademark Law stipulates that if a registered trademark has become the common name of the goods it has approved to use or has not been used for three consecutive years without justified reasons, any unit or individual may apply to the Trademark Office for cancellation of the registered trademark.The Trademark Office shall make a decision within nine months from the date of receiving the application.If the extension is necessary under special circumstances, it may be extended for three months with the approval of the administrative department for industry and commerce under the State Council.
(2) Trademark becomes common name
Article 49 of the Trademark Law stipulates that if a registered trademark has become the common name of the goods it has approved to use or has not been used for three consecutive years without justified reasons, any unit or individual may apply to the Trademark Office for cancellation of the registered trademark.The Trademark Office shall make a decision within nine months from the date of receiving the application.If the extension is necessary under special circumstances, it may be extended for three months with the approval of the administrative department for industry and commerce under the State Council.
(3) Illegal use of trademarks
Article 49 of the Trademark Law stipulates that if a trademark registrant changes the registered trademark, the name, address of the registrant or other registered matters of his own accord in the course of using the registered trademark, the local administrative department for industry and commerce shall order him to make corrections within a time limit;If it fails to make corrections within the time limit, the Trademark Office shall revoke its registered trademark.
Right utilization
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As a kind of property right, trademark right can be transferred, licensed, pledged, trusted, and can also be used as heritage and bankruptcy property.
1. Transfer of trademark right
Article 42 of the Trademark Law stipulates that where a registered trademark is assigned, the assignor and the assignee shall sign an assignment agreement and jointly file an application with the Trademark Office.The transferee shall guarantee the quality of the goods in respect of which the registered trademark is used.Where a registered trademark is assigned, the trademark registrant shall assign its similar trademark registered on the same kind of goods, or its identical or similar trademark registered on similar goods.The Trademark Office shall not approve the transfer that is likely to cause confusion or have other adverse effects, and shall notify the applicant in writing with reasons.The assignment of a registered trademark shall be announced upon approval.The transferee shall enjoy the exclusive right to use the trademark from the date of announcement.
According to this provision, the transfer of a registered trademark can take effect only after it has been approved and announced by the Trademark Office. Only signing a trademark transfer contract can not produce the legal effect of transferring the exclusive right to use a trademark.At the same time, the goods or services using the same trademark should come from the same operator, otherwise it will lead to consumers' misunderstanding.Therefore, if the registrant has registered several identical or similar trademarks on the same or similar goods, they should be transferred together.
2. Licensed use of trademark rights
Article 43 of the Trademark Law stipulates that a trademark registrant may authorize others to use his registered trademark by signing a trademark license contract.The licensor shall supervise the quality of the goods for which the licensee uses its registered trademark.The licensee shall guarantee the quality of the goods in which the registered trademark is used.Where a person is permitted to use a registered trademark of another person, the name of the licensee and the place of origin of the goods must be indicated on the goods in which the registered trademark is used.Where a person authorizes another person to use his registered trademark, the licensor shall report his trademark use license to the Trademark Office for the record, and the Trademark Office shall publish it.The trademark use license shall not act against a bona fide third party without being filed.
There are three types of license for the use of registered trademarks, namely, exclusive license, exclusive license and ordinary license.Ordinary license means that the licensor can allow different people to use a registered trademark at the same time.The exclusive use license means that the licensor can only allow a certain licensee to use its registered trademark exclusively and exclusively in the specified region and designated goods at the same time.Within the scope agreed in the contract, the licensor can no longer allow a third party to use its registered trademark, nor can the licensor itself.
3. Pledge of trademark right
In order to guarantee the performance of the debt, if the debtor or a third person pledges the property that he has the right to dispose of to the creditor for possession, if the debtor fails to perform the due debt or the situation of realizing the pledge right as agreed by the parties occurs, the creditor has the right to priority to be paid with respect to the property.According to Article 440 of the Civil Code, trademark right is a kind of property right, which can be used as the object of pledge.
Where trademark rights are pledged, the pledgor and the pledgee shall register the pledge according to law, and the pledge right shall be established at the time of registration.
Limitation of rights
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The protection of registered trademarks in the Trademark Law is not absolute. Some acts of using words or graphics that are the same or similar to registered trademarks do not belong to the use in the sense of the Trademark Law.Article 48 of the Trademark Law stipulates that the use of a trademark referred to in this Law means the use of a trademark on commodities, commodity packages or containers, and commodity trading documents, or the use of a trademark in advertising, exhibitions, and other commercial activities to identify the source of commodities.This means that if others do not use the same or similar content as the trademark to identify the source of the goods, it does not belong to the use of the trademark, and naturally cannot constitute infringement.In addition, although some acts involve the use of the identification function of trademarks, they do not constitute infringement for legitimate reasons or purposes:
1. Proper use of trademarks
The fair use of trademarks means that non trademark owners can use others' trademarks under certain conditions without constituting trademark infringement.Since China's trademark law only explicitly stipulates the descriptive use of trademarks, and does not mention the content of other trademark legitimate use, it is not clear what types of trademark legitimate use are. At present, the academic community has reached a consensus that trademark legitimate use at least includes descriptive use of trademarks and indicative use of trademarks.
(1) Descriptive use of trademarks
Descriptive use of trademarks is also called descriptive use of trademarks. If the purpose of using trademarks is to describe the characteristics of their own goods or services in a reasonable and good faith way, rather than in the sense of trademarks, such use is called descriptive fair use.Article 59 of the Trademark Law of the People's Republic of China stipulates that "the exclusive right holder of a registered trademark has no right to prohibit others from legitimate use of the generic name, figure, model of the commodity contained in a registered trademark, or the quality, main raw materials, function, use, weight, quantity, and other characteristics of the commodity directly expressed, or the place name contained." The rationality of this provision is that:,For generic names or descriptive words that only describe the quality and function of goods, they should not be registered as trademarks because they do not have distinctiveness,However, the registration of these words as trademarks does not mean that the trademark owner can monopolize the use of these marks. The trademark owner has no right to prohibit the use of the expression context.
(2) Indicative use of trademarks
If the words or figures in the trademarks of others are used to illustrate that the goods or services provided by oneself can be matched with the goods or services using the trademarks, or to convey the true information that the goods or services come from the trademark owner, that is, to indicate the purpose, service object and true source of the goods or services provided by oneself, rather than to confuse consumers,It constitutes "indicative use" and does not belong to infringement.The indicative use of trademarks is not clearly stipulated in the legislation. It refers to the use of others' trademarks in order to objectively explain that the goods or services provided by oneself have certain uses, characteristics, or can be compatible or matched with others' goods or services.This kind of use is the use of expression context, and does not belong to the "use of trademarks" specified in Article 48 of the Trademark Law. Therefore, it should not be interfered by the trademark owner, but belongs to the act of legitimate use. It is clear that non trademark use does not infringe the trademark rights of the trademark owner, which is conducive to us to clarify the boundaries between trademark rights and the public domain, and avoid excessive expansion of trademark rights.
(3) Use for other legitimate purposes or reasons
One of the legislative purposes of the Trademark Law is to prevent others from "hitchhiking" - free use of the goodwill embodied in registered trademarks to seek improper interests, so as to achieve fair commercial competition.If before a trademark is registered, others have used the same or similar trademark on the same or similar products in good faith, it is not "free riding".The Trademark Law should tolerate others' continued use of their trademarks within the original scope. Otherwise, it will deprive the prior users of the goodwill accumulated through honest operation, which is unfair to the prior users.Paragraph 3 of Article 59 of the Trademark Law stipulates that,"If, before the trademark registrant applies for trademark registration, another person has used a trademark that is identical with or similar to the registered trademark and has certain influence on the same or similar goods before the trademark registrant, the exclusive right holder of the registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use, but may require it to attach an appropriate distinguishing mark."This shows that "prior use" can be recognized as a defense.
2. Exhaustion of trademark rights
"Exhaustion of trademark rights", also known as "exhaustion of trademark rights", means that for trademark products that have been licensed by the trademark owner or put on the market legally in other ways, others can sell the trademark goods again or provide them to the public in other ways without the trademark owner's permission after purchase.
3. Parallel inlet
Parallel import refers to the import of products from other countries or regions abroad to the country or region where the domestic intellectual property owner or the exclusive licensee is located without the authorization of the relevant intellectual property right holder.At present, China's law does not explicitly prohibit the parallel import of registered trademarks. In judicial practice, the attitude towards the parallel import of trademarks is that the parallel import is not considered a trademark infringement when it does not damage the source of trademark identification goods or services, quality assurance and other functions, as well as the interests of consumers.
tort
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1. Trademark infringement
Trademark infringement refers to the use of a trademark identical with or similar to its registered trademark on the same or similar goods without the permission of the trademark registrant.Article 57 of the Trademark Law stipulates that any of the following acts is an infringement of the exclusive right to use a registered trademark:
（1） Using the same trademark as its registered trademark on the same kind of goods without the permission of the trademark registrant;
（2） Without the permission of the trademark registrant, using a trademark similar to its registered trademark on the same kind of goods, or using a trademark identical with or similar to its registered trademark on similar goods, which is likely to cause confusion;
（3） Selling goods that infringe upon the exclusive right to use a registered trademark;
（4） Forging or manufacturing without authorization the representations of registered trademarks of others or selling the representations of registered trademarks forged or manufactured without authorization;
（5） Without the consent of the trademark registrant, changing its registered trademark and putting the goods with the changed trademark back on the market;
（6） Deliberately providing conveniences for the infringement of another person's exclusive right to use a trademark, and helping another person to commit the infringement of the exclusive right to use a trademark;
（7） Causing other damages to another person's exclusive right to use a registered trademark.
In addition, those who use others' registered trademarks and unregistered well-known trademarks as shop names in enterprise names, mislead the public and constitute acts of unfair competition, shall be dealt with in accordance with the Law of the People's Republic of China on Anti unfair Competition.
2. Trademark infringement litigation
(1) Preliminary injunction
If the trademark owner has evidence to prove that another person is committing or will commit an act that infringes upon his rights or impedes the realization of his rights, and if he does not stop it in time, it will cause irreparable damage to his legitimate rights and interests, he may, in accordance with the law, apply to the people's court to take measures such as ordering or prohibiting a certain act before filing a lawsuit.
According to the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in Examining Cases of Preservation of Intellectual Property Disputes, the adoption of temporary injunction measures should meet the following conditions: (1) whether the applicant's request has a factual basis and a legal basis, including whether the effectiveness of the intellectual property requested for protection is stable;(2) Whether failure to take action preservation measures will cause irreparable damage to the legitimate rights and interests of the applicant or make it difficult to implement the case verdict and other damages;(3) Whether the damage caused to the applicant by not taking action preservation measures exceeds the damage caused to the respondent by taking action preservation measures;(4) Whether the adoption of behavior preservation measures harms the public interest;(5) Other factors that should be considered (such as whether to provide guarantee).
(2) Pre litigation property preservation and evidence preservation
Pre litigation property preservation refers to the compulsory measures taken by the court against the respondent's property according to the application of a serious related person before the lawsuit is filed, so as to prevent the party from disposing of the property for enforcement after the judgment becomes effective before the judgment.In order to stop the infringement, if the evidence may be lost or difficult to obtain later, the trademark owner may apply to the people's court for evidence preservation according to law before bringing a lawsuit.
The people's court shall make a ruling within 48 hours after accepting the application for property or evidence preservation before litigation, and may also require the applicant to provide a guarantee.If the applicant fails to bring a lawsuit within 30 days after the adoption of the preservation measures, the people's court shall cancel the preservation measures.
(4) Limitation of action and competent court
The limitation of action for infringement of the exclusive right to use a registered trademark is three years, counting from the date when the trademark registrant or the interested party knew or should have known of the damage to its rights and the obligor.If a trademark registrant or an interested party has filed a lawsuit for more than three years, and if the infringement continues at the time of the lawsuit, the people's court shall, within the validity period of the exclusive right to use the registered trademark, make a judgment that the defendant should stop the infringement, and the amount of compensation for infringement damages shall be calculated for three years from the date the obligee filed a lawsuit with the people's court.
The first instance cases of trademark civil disputes shall be under the jurisdiction of the people's courts at or above the intermediate level.Each higher people's court may, according to the actual situation of its jurisdiction and with the approval of the Supreme People's Court, designate 1-2 basic people's courts in larger cities to accept cases of trademark civil disputes of first instance.
(5) Determination of compensation amount
1) Calculated according to actual loss or illegal income
The amount of compensation for infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the obligee due to the infringement;If it is difficult to determine the actual loss, it may be determined according to the interests obtained by the infringer due to the infringement;Where it is difficult to determine the loss of the obligee or the benefit obtained by the infringer, it shall be reasonably determined by reference to the multiple of the trademark licensing fee.If the circumstances of a malicious infringement of the exclusive right to use a trademark are serious, the amount of compensation may be determined between one time and five times the amount determined in accordance with the above method.The amount of compensation shall include the reasonable expenses paid by the obligee to stop the infringement.
2) Compensation according to legal amount
If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests obtained by the infringer as a result of the infringement, and the license fee for the use of a registered trademark, the people's court shall, according to the circumstances of the infringement, award a compensation of less than five million yuan.
3) Evidence for determining the amount of compensation
In order to determine the amount of compensation, the people's court may order the infringer to provide books and materials related to the infringement when the obligee has tried his best to provide evidence and the books and materials related to the infringement are mainly in the hands of the infringer;If the infringer does not provide or provides false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.
4) Circumstances without liability
Where the holder of the exclusive right to use a registered trademark claims compensation, and the accused infringer raises a defense against the fact that the holder of the exclusive right to use a registered trademark has not used the registered trademark, the people's court may require the holder of the exclusive right to use a registered trademark to provide evidence of the actual use of the registered trademark in the previous three years.If the exclusive right holder of a registered trademark cannot prove that he has actually used the registered trademark in the previous three years, or that he has suffered other losses due to infringement, the accused infringer shall not be liable for compensation.
If a person sells goods that he does not know infringes the exclusive right to use a registered trademark and can prove that the goods were legally obtained by himself and state the supplier, he shall not be liable for compensation.
Related cases
Announce
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"Do Not Disturb Without X" case, case No.: (2016) Yue Min Zai No. X
1. Basic case
Jin applied to the State Trademark Office for registration and obtained the trademark of "Non X Do Not Disturb". The approved service items are Class 45, including "dating service, marriage agency", etc.Hou Jinmou thought that the TV program name of XX Satellite TV "Non X Do Not Disturb" was the same as his trademark name and service category, which constituted an infringement of his trademark exclusive right, so he filed a lawsuit to the court and asked XX TV to stop the infringement immediately.In this case, the verdict of the first trial was lost, and the second trial was changed to win.XX TV station refused to accept the sentence and filed an application for retrial.
2. The focus of the case and the court of retrial held that
(1) Whether the use of the sued logo by XX TV station belongs to trademark use
XX TV station claims that its use of the "Non X Do Not Disturb" logo is only the use of the program name, not a trademark use.The retrial court held that the fact that the relevant logo has the attribute of program name does not necessarily exclude the possibility of the logo as a trademark. To judge whether the "Non X Do Not Disturb" logo belongs to trademark use, the key lies in whether the use of the relevant logo is to indicate the source of the relevant goods/services and play a role in enabling the relevant public to distinguish between the providers of different goods/services.In this case, the "Non X Do Not Disturb" logo has been repeatedly used or prominently used by XX TV station for many times in commercial activities such as TV, official website, investment promotion advertising, on-site publicity, etc. The way of use is continuous and consistent. Among them, the logo has a certain uniqueness in the overall presentation, and has the function of distinguishing goods/services.Moreover, XX TV station publicized the "Non X Do Not Disturb" logo and other brand logos side by side in many advertisements, and sought trademark authorization for the use of the logo, which directly reflected XX TV station's subjective intention to use the sued logo as a trademark of identification source and maintain it as a brand.Therefore, it is untenable for XX TV station to deny that the relevant act belongs to trademark use.
(2) Whether XX TV station infringed the registered trademark right of Mr. Jin involved in the case
1) Whether the sued logo is the same or similar to the trademark involved
The "Non X Do Not Disturb" logo is similar to Jinmou's registered trademark in objective elements, but the similarity of objective elements is not equal to the similarity in the sense of trademark law.What the Trademark Law is intended to protect is not only the trademark itself solidified by registration, but the function of the trademark to identify and distinguish the source of goods/services.If the sued act is not used on the same or similar goods/services, or does not damage the identification and differentiation functions of the registered trademark involved, nor does it lead to market confusion, it shall not be deemed to constitute trademark infringement.
2) Whether the two service categories are the same or similar
The two are obviously different in terms of service purpose, content, method and object. With the general cognition of the relevant public, they can clearly distinguish the content of TV entertainment programs from the actual matchmaking service activities, and will not be mistaken for a specific connection between the two. They do not constitute the same service or similar services.Even though the accused program "Non X Do Not Disturb" is similar to the service of "Friend making Service and Marriage Introduction", the words "Non X Do Not Disturb" in the registered trademark of Mr. Jin are common words in commercial activities, and their significance in the field of marriage introduction service is low, and they have not gained acquired significance through long-term and extensive use of Mr. Jin,The sued behavior will not lead to confusion and misidentification of the service source by the relevant public, nor will it constitute trademark infringement.
To sum up, the court held that although the sued "Non X Do Not Disturb" logo and Jinmou's registered trademark are similar in objective elements, they are used in different service categories, and will not cause confusion and misunderstanding among the relevant public. The sued "Non X Do Not Disturb" logo does not constitute infringement of Jinmou's registered trademark.
3. Judgment result
The judgment of the second instance shall be annulled and the judgment of the first instance shall be upheld.(Mr. Jin lost the lawsuit)
In the judgment, the court also specifically pointed out that the radio and television industry itself has the responsibility of public cultural services, and it is inevitable to create and sublimate real life related topics, but real life topics are only the components of television programs, and cannot simply and independently separate a certain form of expression or a certain theme from the overall program,We should comprehensively investigate the overall and main features of the program, fully investigate whether the sued behavior leads to confusion and misrecognition from the general understanding of the relevant public, appropriately make a judgment on infringement, and achieve the best balance between safeguarding the legitimate rights and interests of trademark owners and reasonably maintaining the prosperity and development of the radio and television industry.
