The original south lake court, the south lake court, recorded in the collection #intellectual property 16 #practical cases 94
26 april 2023
It's the 23rd world intellectual property organization. Day
The theme of this year's national intellectual property awareness week
“strengthening the rule of law guarantees for intellectual property
Strong support for comprehensive innovation”
Slide view left and right
In an effort to further protect the development of intellectual property rights with justice and to encourage innovation in general, the south lake court will launch a series of intellectual property rights promotion and protection activities in conjunction with trial practice and social hotspots this year. Today, we take you into one of the most common objects of intellectual property in everyday life — things like “marks”。
Let's look at some typical cases
Sale of fowl with the same mark as the registered trademark and compensation of $100,000
The plaintiff, hangzhou society for american research network science and technology, ltd., was authorized by the registrar of the trademark no. 38625229 “fmmm” to use and defend the trademark in the people's republic of china, and the trademark was authorized to use category 25: jackets, etc. The title of the product in which a garment company from ping lake sold a fowl coat in a net store was used as “fcmm”, and the clothing sold was embroidered with the words “fcmm”, marked as clearly located and objectively capable of identifying the origin of the goods and constituting a trademark use. The defendant's actions constituted a trademark violation because of the large amount of its sale, which resulted in a sum of $100,000。
2. “gaft building” and “gaft hall”, which use approximate service markings to constitute trademark infringement rights
The plaintiff was assigned number 8477052
Trademarks (“the restaurant” relinquishes exclusive rights”) with approved service lines of category 43: hotels; fast restaurants, etc., which have been used for many years to recruit restaurants. It was found that a restaurant in the same town operated a hotel using the words “carvage” in the shop and the interior wall. The very similarity of the text and pronunciation of the carfort building in trademark no. 8477052 makes it easier for the public concerned to misidentify the source of the hotel services and to constitute a similar trademark. One of the defendant's restaurants violated the plaintiff's right to register trademarks and was found liable for cessation of the infringement and compensation for the plaintiff's economic loss and reasonable expenses in defence of rights。
Three, not all dragon well tea is called west lake dragon well
The hangzhou dragon lake tea management association was approved by the trademark office for registration under no. 9129815
“geographs certify trademarks, which harmonize the packaging of west lake dragon wells logos and issue the law and technical instructions for the regulation of geographical signs at west lake dragon wells, regulate the use of trademarks, authorize operators who meet the conditions for their use, and require operators to mark the sale of west lake dragon wells with the markings of the tea sites of west lake dragon wells. “..
“the trademark is recognized by the state administration of commerce and industry as a known trademark. The defendant, kashing, sold a tea box at a tea house called “western lake dragon well”, which was distributed to its members by the association for the management of western lakes tea in hangzhou, highlighted the use of the words “western lake dragon well” as a trademark violation, and was mediated by a court to stop selling tort products and compensate the hangzhou association for economic losses。
What's a trademark
Trademarks are any sign that can distinguish the goods of a natural person, legal person or other organization from those of another person, including words, graphics, letters, numbers, 3d symbols, colour combinations and sound, and a combination of the above-mentioned elements. The use of trademarks refers to the use of trademarks in the form of merchandise, packaging or packaging of goods and in the form of merchandise transactions, or in advertising, exhibitions and other commercial activities to identify the origin of the goods。
Trademarks have the function of distinguishing the source of goods, quality assurance, advertising, etc., and carry the goodwill of their holders. The trademark registered with the approval of the trademark office is registered and the trademark holder has the right to the exclusive use of the trademark and is protected by law。
Registered trademarks have the following categories: trademarks for goods, service trademarks, collective trademarks, certification trademarks。
In this case, a collective trademark is a symbol registered in the name of a group, association or other organization for use by members of the organization in commercial activities to indicate the user's membership in the organization. For example, trademarks."
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I'm sorry。
Proof of a trademark means a mark, controlled by an organization with supervisory power over a commodity or service, which is used by an entity or individual other than that organization to prove the origin, raw material, method of manufacture, quality or other specified quality of the commodity or service. For example, in case 3 above
I'm sorry。
What are the main violations of the right to register trademarks
Article 57 of the trademarks law of the people's republic of china provides that:
Any person who:
(i) the use of the same trademark on the same commodity without the licence of the trademark holder
(ii) the use of trademarks similar to or similar to their registered trademarks in the same commodity without the licence of the trademark registrant, or the use of trademarks identical to or similar to their registered trademarks in similar goods, which can easily lead to confusion
(iii) the sale of goods in violation of the right to exclusive use of registered trademarks
(iv) forgery, unauthorized manufacture of registered trademarks or sale of forged or unauthorized registered trademarks
(v) replacement of the trademark without the consent of the trademark holder and re-entry into the market of the goods for which the trademark was replaced
(vi) deliberately facilitating the infringement of the right of another to use a trademark to help another to commit an infringement of the right to use a trademark
(vii) other damage caused by the exclusive right to register a trademark of another person。
In addition, the use of unregistered trademarks, registered by others, as characters in the name of the enterprise, which misleads the public and constitutes an improper competition is dealt with in accordance with the law of the people's republic of china on anti-improper competition。
How can legal risks to trademark rights be protected in production operations
Consistent with the principle of “no authorization, no use” to regulate the use of elements of commercial propaganda
2. Actively develop innovations and foster self-owned brands
3. Pay attention to product labelling during the selection of suppliers and the conclusion of supply contracts, verify the registration of trademarks and establish intellectual property security clauses
4. To preserve, regulate and regulate evidence of legitimate origin, such as a certificate of entry, to facilitate the tracing of trademark rights holders to the source of tort products。
