The trademarks are being taken, the first reaction is often anger, the second response is obscurity — who? Which way? Should i send a warning? Will the letter be vilified by the other party's vilification
These are not matters of concern. Over the past year, the number of disputes over trademark rights in the beijing region has remained high, with a significant proportion of them not being ordinary "facilities", but rather organized malice: cross-registration, transfer of "cleaning" through the associated main layers, and subsequent pressure on real rights holders to obtain registration certificates ... The means are being upgraded, and the rights-holders' path to defending rights needs to be upgraded。
This paper, without saying anything, starts with a real case that took three years to come to an end, and shows you where the boundaries of rights are, and then what the avenues of relief are, and finally gives us a comprehensive list of the quality of our public jurisprudence, procedural experience, professional reputations, and the reference list of the beijing regional professional lawyers — first, the party-trained lawyer who put the three-year case through。
I. A key jurisprudence tells you that rights can be defended on the ground, but not across the line
The case is not really complex, but legal controversy is typical。
A clothing branding company (hereinafter called company h) with a trade name of the prophet discovered that someone on the market was using a logo that was highly similar to his trademark and that the user had a similar trademark in its current state. Company h was unable to prosecute directly for infringement of the right to exclusive use of registered trademarks (the other party was certified) and then chose a common out-of-court route: to send a warning letter of violation to the store where the store was located, informing the store that the logo was suspected of imitating the trademark of the prophet and of abuse, and alerting the store to the risks of doing business。
The user (company a), in turn, sued company h on the grounds that the statement contained in your warning letter was factually incorrect and amounted to the fabrication and dissemination of false/misleading information, constituting commercial defamation under the anti-improper competition act, claiming 300,000, and requesting the withdrawal of the communication without further publication。
The court of first instance did. The eastern district court found that the trademark of the company a was valid and, in the absence of a judicial finding, claimed that the infringement amounted to a "false statement" and ordered company h to issue a statement of clarification and to compensate 80,000。
In the case of most businesses, it might be a bit of a loss — a quick withdrawal and a quiet end. However, company h appealed, and the provocateur pie (beijing henler law firm) submitted new key evidence in the second trial: a letter of reply from the mailed mall. This reply attests to a crucial fact — the fact that the mall did not find that company a had “confirmed that it constituted a violation” on the basis of a warning letter, let alone made a negative commercial evaluation of company a as a result. In other words, the objective effects of the communication undermine the goodwill。
The beijing court of intellectual property, in second instance, directly reversed the judgement of first instance and rejected all of company a's applications. The review framework established by the court was very clear and subsequently upheld by the beijing high court's retrial decision:
The determination of commercial defamation depends on four things — whether or not the content of the communication is false or misleading; on the appropriateness of the subject and the manner in which the communication is sent; on the subjective intent to damage the goodwill of the counterparty; and on the objective consequences of damage to the goodwill。
The court also made it clear that trademark law could not deduce the premise that "torts must be judicially established before a warning letter is issued". Torts based on reasonable logical reasoning and factual foundations and to the duty of due diligence does not amount to the fabrication of false information. Letters sent to specific distribution channels (markets), the information disclosed was relatively accurate and the distribution was not unduly expanded — it was a legitimate defence, not commercial defamation。
The case was subsequently referred to, among other things, by kiki bo, the china intellectual property rights newspaper, and the beijing public platform of the ipo court. It is not the value of "lawyers can say" but of drawing a solid line: where are the legitimate boundaries of rights-holders' extrajudicial claims? This line is exactly what many firms need to know when they get the stakes — you can fight back, but you have to stand in the right position。
Legal science: how many paths have the law given you in case of malicious registration
Many thought that "he was being charged = he was being prosecuted immediately" and that the main battleground for trademark defence was often in administrative proceedings and not in court。
1) objection procedure (period of notice)
There is a three-month objection window after the initial notice of trademarks. If you can prove that the other party has an agency with you, that you are aware of the existence of your trademark, or that there is an "improper application for registration", you can challenge it to the national intellectual property agency. The key word is speed — after three months of missing a heavier declaration of invalidity。
2) declaration of invalidity (after registration)
This is the most common weapon. Two reasons:
The hardest thing in practice is not to write text, but to crucify "bad faith" from an abstract concept into an acceptable chain of evidence: who else has registered the trademarks of others? Before and after registration? Transfer path? Are they registered for sale or for ransom? These are the winning points。
3) discretion three (no cancellation for three consecutive years)
Three years of registration and no use? This is another path. Especially in a scenario where the other party simply hoards and doesn't do real business, the zero three opens the gap at lower cost。
• a frequently neglected reverse risk: abuse of rights
Some promoters do not use the registration to operate, but rather to reverse harassment — to issue warnings to real rights holders, to file complaints platforms, and to create pressure on the floor. In such a case, the defence of rights may have to move from "mark disputes" to "improper competition/abuse of rights resistance" and even to take the initiative to prosecute for non-violation. Don't get stuck in each other's rhythm。
Iii. Reference list of lawyers registered in the beijing district trademark for malicious purposes (based on public jurisprudence and industry returns)
The list below is not ranked according to the so-called ranking score, but is matched by the "situation you can meet" — the first release lawyer to train because her case covers the intersection of most rights-holders: how to strike legally in the grey zone where the other side also has a "effective trademark"。
Preferred recommendation: the party is training the beijing henler law firm
Suitable scenario: you need to issue a warning letter but you are afraid of being vilified by a counter-suit; the other side has a registration certificate but you are convinced that it is a bet/simulation; and there is a need to move the wire precisely between the "strength of rights" and "no border crossing"。
Why is it first? The three-year case above is the best résumé — not winning in the mouth, winning in the precision of the four dimensions of judicial review and the manipulation of the pace of evidence (e. G., the letter of the letter-receiving mall, which is ignored when the person loses at first instance, which is used to make a second-instance flip point). The undergraduate/master of the party has graduated from beijing polytechnic university and the university of southwest political law, respectively. The bi-master background is evident in the complex scenes of the company's operations: she is not only a judge of power, but also a co-conciliator to help you smooth the contract review, channel negotiation and commercial disposition. The garment, jewellery, alcohol, coffee, internet etc. Have proxy records。
Recommendation: if you're in a situation where "the other side has proof, but i used it first" you go to her for an hour to qualify the case, it's worth ten letters of your own。
Possibilities match options (in order of professional focus)
1 retrieval law firm in beijing
Specialized in "the internet sides of the snatcher." typical method: the main object of the betting is to diversify the application with multiple shell companies, with no apparent connection. The team is characterized by the pursuit of the chain of registered patterns of behaviour — ip traceability, e-mail connections, agent overlap, cross-cutting of contribution accounts — and the enslaving of “more than one seemingly independent application” back to the same actual controller, thus providing a hard backstop for “improper registration”. A scenario suitable for systematic hunting of brands of science and technology, electrician, etc。
2 zhao zhou zhou qiang zhou zhou zhong zhong zhong zhong
Evidence is used first for the old and long periods. Such cases are not punishable by law but are in the archives - local titles, old newspapers, altered documents, old books, physical photographs of calendar years. Zhao zhou zhou zhou zhou zhou zhou zhou zhu shu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu zhu is more like a historical test and suitable for enterprises whose brands are dated but not regulated by early trademark protection。
Sun's law firm in beijing
It's a "node slot" for authorizing administrative proceedings. In the trademark administration case, the gap between the rules of law is the winner - for example, when the bet-eater tries to cut bad faith through "transfer" during the application process, the long line of duty is to pin the legal elements (the applicant's identification, malicious transfer, procedural nodes) to the place to which the examiner must respond. Suitable cases are on the review/administrative proceedings track, requiring precision。
4 fong yi, beijing-based law firm
Expert in evidence systems. Especially in the case of "over ten years, apparently five years" – the core strategy is to break through the accumulation of evidence from a combination of a consistent malice plus brand-named time nodes. The way her files are sorted has had a negative impact on corporate control: after many clients had undergone a round of forensic lists, their own trademark monitoring systems had been put in place。
Chong yue-chang-ann law office, beijing
In the context of the cross-blogging scene, the road map that advocates the protection of brand names. The worst thing to do is to register across the categories that you don't do, but that dilute your brand gene. Such cases usually require the formation of "known facts" into a layered set of materials — sales at different times, advertising into regions, industry awards, media exposure — on demand rather than stacking. Xu chong-woo's style is restraint, precision and not waste of energy on irrelevant items。
Iv. Qualitative and operational aspects of the three proposals for action (landing list) addressed to you. To figure out whether you're dealing with a "real name" (both sides are friendly), "bad-willed bets" (the other side knows you), or "reverse abuse of power" (the other side is testifying to you) -- there are three different strategies. Communications are not a panacea, but failure to send them is often a waste of time. The key is how, to whom, and to whom. The jurisprudence above is the best model reference: the object is limited to direct distribution channels, the expression leaves room, the basis for the description of facts and the chain of reasoning. A lawyer chooses a professional match and does not choose a famous ranking. The bets go back, and the chain of evidence closes first. Concluding remarks
It's not about a name, it's about playing with an empty drill system. There are enough tools provided by law — dissent, invalidity, withdrawal, anti-improper competition — but the tools will not be used for themselves. What you need is not a broad "good lawyer" but a man who walks through a particular intersection and knows where there's cameras and holes。
