Understanding and Application of Trademark General Illegal Judgment Standards (2)-Ttrademark-Shenzhen deep trust patent Agency Co., LTD

Understanding and Application of Trademark General Illegal Judgment Standards (2)

Release Time：

2022-11-08

Promulgated by the State Intellectual Property Office on December 13, 2021"Trademark General illegal Judgment Standard" (hereinafter referred to as "Standard").In order to further promote the guidance of trademark law enforcement business, further do a good job in the publicity and interpretation of the "Standards", help law enforcement personnel accurately understand the meaning of the provisions, and timely answer the application problems in the implementation process, the State Intellectual Property Office has written the "Understanding and Application of Trademark General Illegal Judgment Standards", which will be shared and pushed in batches on the official wechat from now on. Please pay attention to update oh!

Understanding and application of "Trademark General illegal Judgment Standards"

Article 5

Whether the use of an unregistered trademark violates Trademark law Article 10 states that the standard of judgment shall generally be the general understanding of the public in China.

However, there are reasonable and sufficient reasons to prove that the specific public in China believes that the use of an unregistered trademark violates the provisions of subparagraphs 6 to 8 of paragraph 1 of this Article, except.

This article specifies whether the use of an unregistered trademark is a violationTrademark law The judgment principle and exception of prohibition provisions.

Trademark law Article 10 specifies the specific circumstances under which it may not be used as a trademark. Articles 5 to 16 of the Standards focus on the problems of widespread and prominent use of trademarks with ethnic discrimination, fraud, and adverse effects in law enforcement practice, and make principled provisions for the same or similar judgments.

A trademark is a mark used to distinguish the goods or services provided by different producers and operators, but not all marks can be used as trademarks. In view of the present Trademark law The scope of application is within the territory of China, so its judgment standard is generally the general understanding of the public in China, rather than the specific relevant public. However, in practice, different social groups have different opinions about whether certain signs belong to Trademark law Article 10 Prohibited with ethnic discrimination, fraud, adverse effects and other circumstances often have different understandings. If certain members of the public believe that the use of a particular mark as a trademark violates Trademark law Article 10, paragraph 1, items 6 to 8, should focus on whether the reason is reasonable and sufficient, and then determine whether it is prohibited. For example, books such as "Mount Tai the Great", "Dictionary of Chinese Gods and Monsters" and websites such as the website of the Chinese Taoist Association record: Taishan Great is one of the Taoist gods, and also has the title of "Dongyue Great", "Taishan God", "Dongyue Rensheng Tianqi King" and "Taishan Fujun". It has not only been honored by emperors in the past dynasties, but also has been worshipped and worshiped for a long time in the folk people and Taoist believers, and has a very high religious status. Even if the official record does not record "Taishan Great" as "Tai Mountain God" or "Dongyue Great", "Taishan Great" is not the only counterpart to the title of "Dongyue Great" or "Tai Mountain God", but the cognition of religious institutions shows that "Taishan Great" refers to "Tai Mountain God" or "Dongyue Great" and has religious meaning. Therefore, the use of "Taishan the Great" as a trademark may cause harm to religious beliefs, religious feelings or folk beliefs, resulting in adverse effects, and the sign is prohibited.

Article 6

Whether the use of an unregistered trademark constitutes Trademark law Article 10 Where the provisions of paragraph 1 are identical or similar, the judgment shall be made with reference to the Guide for Trademark Examination and Adjudication.

This article provides the same and similar judgment criteria for the use of unregistered trademarks and prohibited marks. In view of the complexity of trademark identical and similar judgment, the Standard does not list the specific judgment criteria in detail, but makes it clear that law enforcement personnel should refer to the provisions of the Trademark Examination and Trial Guide to judge. In the process of trademark law enforcement and trademark examination, the principles and standards for judging the similarity of trademarks are basically the same, and the "Trademark Examination Trial Guide" is an important reference for law enforcement departments to judge whether trademarks are similar.

Case 1

The former Shanghai Administration for Industry and Commerce investigated the case of Shanghai Youxiang Cultural Development Co., Ltd. using the name and emblem of the United Nations without authorization

Shanghai Youxiang Cultural Development Co., Ltd. is a company mainly engaged in cultural exchange and conference and exhibition services. Since February 2016, without the authorization and consent of the United Nations, the parties have used the names and emblems of the United Nations and the United Nations on their official websites, wechat accounts, Weibo accounts and other promotional materials, registration agreements, etc., and organized recruitment of personnel to attend the United States in the name of the so-called "United Nations World Youth Summit". More than 6 million yuan of illegal business income was obtained from participation fees. Without the authorization and consent of the United Nations, the parties used the words "United Nations Youth Summit", "United Nations", "United Nations" and the summit logo and the United Nations logo in many places in their business activities, which could easily make the public mistakenly believe that the summit was organized under the authorization of the United Nations Trademark law Article 10 (1) (3) Concerning the use of marks identical with or similar to the name, flag, emblem, etc. of an intergovernmental international organization, except with the consent of the organization or where it is not easy to mislead the public. The former Shanghai Administration for Industry and Commerce shall impose an administrative penalty of ordering the parties to make immediate corrections and imposing a fine of 400,000 yuan.

Appraisal and analysis

The name, flag and emblem of the intergovernmental international organization are the symbol of the international organization. In this case, the law enforcement authorities, with reference to the Trademark Examination and Trial Standards implemented at the time of the case, determined that the logo used by the person concerned was the same or similar to the name and logo of the United Nations, and then determined that it was illegal and prohibited it in time, effectively safeguarding the legitimate rights and interests of the international organization, and at the same time achieved the purpose of publicity and education to the public, and established the authority of the rule of law.

Case 2

The former Nanjing Administration for Industry and Commerce of Jiangsu Province investigated the case of Jiangsu Kati Food Co., Ltd. unauthorized use of the British flag

In March 2018, the former Nanjing Administration for Industry and Commerce in Jiangsu Province received a report that Jiangsu Kati Food Co., Ltd. used the British flag as a trademark in its business activities and was suspected of violating it Trademark law Relevant provisions.Law enforcement opened an investigation. After investigation, since November 2016, the party has been authorized by Taiwan Longqiao International Co., LTD., to use No. 21621450 in "cafe" and other services.”、No. 21388082“”、No. 21388149”And number 10904562“”Isoregistered trademark，Engaged in milk tea business. In order to package the products using the trademark of "Classic Teddy's Milk Tea Shop" as products from the United Kingdom and increase consumers' trust in the brand, the party arbitrarily added the British flag to the trademark No. 21388082 and No. 21388149 in the course of business, and used it extensively in office investment promotion and store business activities. The parties also design and produce their own franchise website and related text descriptions with the British flag trademark to carry out online franchise business. By the time of the incident, the parties had cooperated with others to open three chain stores in the core commercial district, with a total operating amount of 4.541 million yuan.

The law enforcement department determines the composition of the party's conduct Trademark law Article 10 The act referred to in Paragraph 1, paragraph 2, of using a mark "identical with or similar to the national name, national flag, national emblem or military flag of a foreign country" as a trademark shall be based on Trademark law Article 52: Administrative punishment shall be imposed by ordering the parties to stop the illegal acts immediately and imposing a fine of 317,900 yuan.

Appraisal and analysis

The parties in this case arbitrarily used trademarks with the British flag in many places such as shops and websites, trying to package their goods as so-called foreign goods and deceive consumers. This case is also a concrete embodiment of the trademark law enforcement department's implementation of Article 7, paragraph 2, of the Trademark Law, "Through trademark management, to stop the behavior of deceiving consumers."

Article 7

Trademark law Article 10 "ethnic discrimination" as provided for in paragraph 1 (6) means the use of words, graphics or other constituent elements of an unregistered trademark with the content of vilifying, belittling or other unequal treatment of a specific ethnic group.

This article provides for the meaning of ethnic discrimination.

China is a unified multi-ethnic country where all ethnic groups are equal. In order to maintain national unity, any sign with ethnic discrimination is prohibited as a trademark. Ethnic discrimination includes stigmatization, demeaning, and other situations in which particular ethnic groups are viewed unequally. The determination of national discrimination should take into account the composition of the trademark and the goods or services designated for use. Some ethnic or race-related text, graphics, etc., may not have discriminatory connotations in themselves, but may also have discriminatory effects when used on certain goods or services. It should be noted that the logo itself and its constituent elements are the same or similar to the national name, and vilify or belittle a specific ethnic group, the provisions of Article 10, paragraph 1, paragraph 6 of the Trademark Law "with ethnic discrimination" shall apply; If the logo itself does not have a discriminatory meaning, but its use may hurt national feelings, the provisions of Article 10, Paragraph 1, Paragraph 8 of the Trademark Law "have other adverse effects" shall apply.

Article 8

Trademark law Article 10 "Deceptive" as stipulated in paragraph 1, Paragraph 7, means that the trademark makes an expression of the quality or other characteristics of the goods or services used or the place of origin that exceeds its inherent degree or is inconsistent with the facts, so that the public may have a wrong understanding of the quality or other characteristics of the goods or services or the place of origin.

However, the public will not misidentify the quality of goods or services or other characteristics or origin based on daily life experience, except.

This article provides a deceptive meaning.

In order to protect the interests of consumers, it is prohibited to use signs that exaggerate the functions and functions of goods or services, so as to prevent them from covering up the truth about the quality, main raw materials, functions, uses and origin of goods or services. For example, the use of "health" in cigarette products, the use of "treatment" in pharmaceutical products. To judge whether the relevant signs are deceptive, we should make a comprehensive judgment from the general cognition level and cognition ability of the public, combined with the characteristics of the goods or services used. In addition, it is necessary to consider the possibility of misconceptions among the public about characteristics such as the quality of goods or services or the origin of goods or services. For example, when "good soil" is used in the product of "egg", it is easy for consumers to misrecognize the characteristics of the product such as quality, quality and cultivation method, which is deceptive as stipulated in Article 10 (1) (7) of the Trademark law.

Based on daily life experience, the public will not misidentify the quality of goods or services or other characteristics or origin, such as "blue sunshine" used in solar water heater products, because ordinary consumers based on common sense will not mistake the sun for blue, so it is not appropriate to identify the trademark used in solar water heater products with deception.

Article 9

The use of an unregistered trademark falls under any of the following circumstances Trademark law Article 10, Paragraph 1, Paragraph 7 is deceptive:

(1) where the quality, main raw materials, functions, uses, weight, quantity or other characteristics of a commodity or service are easily misidentified by the public;

(2) liable to cause the public to misidentify the place of origin of commodities or services;

(3) other representations of the quality and other characteristics of the commodities or services used or the origin of the goods or services that exceed their inherent degree or are inconsistent with the facts, and are liable to cause misidentification by the public.

This article provides for specific cases of deceptive inclusion by way of an enumeration plus cover clause.

First, it is easy for the public to misidentify the quality, main raw materials, functions, uses, weight, quantity and other characteristics of goods or services. For example, "State guest" usually refers to a foreign head of State or Government who has accepted an official invitation from the head of State or Government to visit that country.“ ”As a trademark used in tofu products and other goods, it is easy to make the public think that it is specially used for banquetsSpecial food for visiting foreign heads of state or government, resulting in misperceptions of its quality and other characteristics. Another example is "wheat white beer", which directly indicates the raw materials of beer, and the specified use of "ginger beer" goods is easy to make the relevant public misidentify the raw material characteristics of the goods.

Second, it is easy for the public to misidentify the origin of goods or services. When place names are used on goods or services, the relevant public will usually recognize them as markers of origin, and if the actual origin of the goods or services is inconsistent with the place names used, the relevant public will misrecognize the place of origin. For example, the production and business address of the party is in Hefei, Anhui Province, and the use of the "Xidi Hong Village" sign on the commodities produced by it, because the commodities are not from the ancient villages in southern Anhui Province, Qian County, Huangshan City, Anhui Province, is easy to cause the public to misidentify the origin of the commodities. It should be noted that the "origin" here includes two cases: the first case is that it has a unique meaning, that is, it has no other meaning than the place name; The second situation is that it has multiple meanings, but it is associated with the commodity used, and relevant consumers are easy to associate the quality of the commodity and other characteristics with the meaning of the name of the word, resulting in misidentification.

Third, other cases of misidentification. For example, market entities that do not undertake the work of national material reserve use the "central reserve" sign on computer network online advertising services. "Central reserve" has the meaning of central reserve, such as the common central grain reserve, refers to the central government reserves for the adjustment of the total supply and demand of the country's grain, stabilize the grain market, and respond to major natural disasters or other emergencies and other situations.

Relevant Content

Understanding and Application of Trademark General Illegal Judgment Standards (1)

2022-11-07

Stamp Law of the People's Republic of China

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Trademark Law of the People's Republic of China (Amended in 2019)

2019-06-25

Provisions on the recognition and protection of well-known trademarks

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Madrid Measures for the Implementation of the International Registration of Marks

2015-11-23

Regulations on the Implementation of the Trademark Law of the People's Republic of China (2014)