Abbreviature of adjudication
The trademark registrant takes advantage of the trademark right which has the "legitimate" right basis in form to bring infringement lawsuit against the use of the trademark by others, which constitutes the abuse of the trademark right. The people's court may conduct a limited and prudent review of the legitimacy of the trademark right when the trademark registrant maliciously exercises the trademark right. If the right base is not justified, the people's court shall impose certain restrictions on the exercise of the right to prevent the abuse of the trademark right.
Case
On September 5, 2018, Liu applied for registration of No. 33340276 "Mai 奀 Kee" trademark, and approved the use of goods as Class 43, including restaurants, restaurants, conference room rental, etc. On December 3, 2020, Liu, through notarization and evidence collection, found that Mai 奀 Noodle Company used "Mai 奀 Wonton 1920 Mak's Noodle and chart", "Mai 奀" and chart identification in its shop signs, billboards, menus and other places. Star River Co., Ltd. is the owner of the registered trademark No. 13227484 "Mc奀 Wonton Products and Drawings", the application date is September 11, 2013, Mc奀 Noodle Co., Ltd. is authorized by Star River Co., Ltd. to use the trademark on August 1, 2016. Liu thinks that Mai 奀 flour noodle company infringes its exclusive right to use trademark, and appeals to Mai 奀 flour noodle company to stop infringement and compensate for losses. In January 2022, the State Intellectual Property Office approved the use of trademark No. 33340276 in Class 43 "conference room rental" services to maintain validity, and declared invalid in the rest of the services.
Referees and umpires
After hearing the case, the court of First instance held that Mai 奀 Noodle Company has used "Mai 奀" as its business name since 2015, and in 2016, it was authorized to use the registered trademark No. 13227484 by Star River Company. The operation of M奀 noodle company has a certain scale, and the relevant public has established a certain recognition of its brand. In accordance withTrademark ActParagraph 3 of Article 59, the prior and good faith use of the logo "Mai 奀" by Mai 奀 Noodle Company shall not constitute an infringement of the exclusive right to use the registered trademark enjoyed by Liu XX in respect of No. 33340276. Then the judgment rejected Liu's claim.
After the verdict, Liu refused to accept and filed an appeal. Guangzhou intellectual Property Court after hearing that in accordance withTrademark ActArticle 7, Paragraph 1, and Article 32 of the Act, Liu XX applied for registration of trademark No. 33340276 and was authorized, which can not be justified. The use of the logo "Mai 奀" in the business activities of Mai 奀 Noodle Company, whether based on the enterprise name or the licensed registered trademark, in the service of Class 43 restaurants, has a certain legitimacy. Liu's non-good-faith exercise of the right to exclusive use of registered trademarks belongs to the use of the trademark registration system to exercise rights in bad faith, constituting abuse of rights, and its claim cannot be established. The appeal was dismissed and the original judgment upheld.
evaluate
The focus of the dispute in this case is the identification of the abuse of trademark rights.
1. A registered trademark obtained in bad faith does not have substantial legitimacy.Trademark ActArticle 32: An application for trademark registration may not prejudice the existing prior rights of others, nor may it preempt by unfair means the registration of a trademark that has already been used by others and has certain influence. Prior rights include the civil rights or other legitimate rights and interests that the parties enjoy before the filing date of the contested trademark, including registered trademark rights, trade name rights, packaging, decoration, etc. Trademark right is an authorized right, which is a private right granted by the trademark department after examination and approval. Trademark rights authorized by the administration have only constructive effect rather than final effect and can be overturned by contrary evidence. If there is any prejudice to the prior rights of others, the opposing party may apply to the competent trademark department to declare the registered trademark invalid. The law mainly focuses on the control of malicious applications in the trademark authorization and right confirmation stage, and gives a negative evaluation to the behavior that damages the prior rights of others. The same position should be held in the determination of infringement, and the trademark right obtained through registration should have substantial legitimacy. If the registered trademark is acquired in bad faith and only enjoys the formal "legal" coat, it lacks the legitimate basis for the existence of rights. In this case, Star River Company, an affiliated company of Mai 奀 Noodle Company, is the trademark owner of registered trademark No. 13227484, which was filed on September 11, 2013, and the approved service category is Class 43 restaurant, fast food restaurant, etc. Liu's trademark No. 33340276 is similar to 13227484 and uses the same class of services, which damages the prior rights of trademark No. 13227484. Therefore, Liu's trademark No. 33340276 applied for and was authorized in Class 43 restaurants, which could not be justified.
2. Malicious litigation to exercise trademark rights constitutes abuse of rights.Trademark registrants violating the principle of good faith to exercise their rights constitutes abuse of rights, and their claims of infringement should not be supported. The main factors to consider in determining the abuse of trademark right include: whether the acquisition of trademark right is improper, whether the trademark registrant claims the right improperly, and whether he has the subjective fault of harming the interests of others. Where a trademark registrant maliciously exercises the trademark right and finds upon examination that it constitutes an abuse of the right, its claim shall be rejected according to law. In this case, Mai 奀 Noodle Company uses the logo "Mai 奀" in its business activities, whether it is based on the enterprise name or the licensed registered trademark, which has certain legitimacy. Liu claims that the use of the trademark rights obtained in bad faith by Mai 奀 Powder Noodle Company infringes on the trademark rights, which is a malicious exercise of the rights by taking advantage of the inadequacy of the trademark examination system, constituting an abuse of the trademark rights, and its claim should not be supported.
3. The regulation of abuse of trademark rights conforms to the purpose of the Trademark Law.Trademark ActThe trademark right to be protected should be the trademark right obtained according to law, rather than relying on the gap in the trademark authorization system, taking improper means to apply for the trademark in bad faith. The court should strengthen the regulation of malicious litigation of intellectual property rights and promote the construction of the integrity system of intellectual property litigation. In the trial of trademark infringement cases, the court has the right to conduct a limited and prudent review of the legitimacy of the trademark right, and restrict the exercise of the trademark right by the trademark registrant when the acquisition of the trademark right lacks legitimacy, so as to avoid the abuse of the trademark registrant's right by using the trademark right with "legitimate" right basis in form after the trademark is registered in bad faith. To regulate the behavior of seeking illegal interests and disturbing the competition order of trademark market in the name of protecting the exclusive right of trademark. (Case writer: Jiang Huasheng Yang LAN Source: People's Court Daily)
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