Understanding and Application of Trademark General Illegal Judgment Standards (1)
Release Time：
2022-11-07
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"
As a commercial mark indicating the source of goods or services, trademark has the attribute of private right, but it is also related to the market order, consumer interests and other social public interests, so it is both public and social. The dual nature of trademark determines that the application and use of trademark by market subjects should be subject to necessary constraints to maintain the balance of the interests of trademark owners, consumers and social public interests. The trademark law enforcement department not only undertakes the function of protecting trademark rights, but also manages the application and use of trademarks, so as to ensure the normal play of trademark functions and maintain the order of trademark management. The trademark administration plays an important role in the legal system of our country.Trademark lawArticle 1 clearly stipulates that strengthening trademark administration is one of its legislative purposes and purposes.Trademark law Article 7, paragraph 2, further emphasizes that "the administrative departments for industry and commerce at all levels shall, through trademark administration, prevent acts of deceiving consumers." Trademark law The sixth chapter in the form of a special chapter on the trademark use of the management of detailed provisions. The department responsible for trademark law enforcement shall, through trademark administration, purify the environment for trademark registration and use, protect the interests of consumers, prevent trademark infringement, promote the standardized use of trademarks by market entities, and give full play to the role of trademarks in the market economy.
According to the 2018 Institutional Reform Plan of The State Council and the Provisions on the Functional Allocation, Internal Organization and Staffing of the State Intellectual Property Office, the State Intellectual Property Office is responsible for the operational guidance of trademark law enforcement and the formulation of inspection, appraisal and other relevant standards for trademark law enforcement. In accordance with the Decision of the Standing Committee of the National People's Congress on the Institutional Reform of The State Council involving the adjustment of the duties of administrative organs prescribed by Law and the Plan for the Institutional Reform of The State Council, where the responsibility is determined to be borne by the established administrative organs or administrative organs assigned to responsibilities, the relevant legal provisions shall be adjusted and applied before the relevant legal provisions are amended. It shall be undertaken by the administrative organ after its establishment or by the administrative organ assigned to its duties. In accordance with the Decision of The State Council on the Restructuring of The State Council Organs involving the adjustment of the responsibilities of administrative organs as provided for in Administrative Regulations and the Plan for the Restructuring of The State Council Organs, where the responsibility is determined to be borne by the established administrative organs or administrative organs assigned to responsibilities, the relevant administrative regulations shall be adjusted and applied before the relevant administrative regulations are amended or repealed. It shall be undertaken by the administrative organ after its establishment or by the administrative organ assigned to its duties. Therefore,Trademark law Trademark Law enforcement regulations The trademark administration functions of the former State Administration for Industry and Commerce Trademark Office shall be assumed by the State Intellectual Property Office. Based on its duties and within the framework of the existing trademark legal system, SIPO has systematically sorted out, summarized and refined the beneficial experience and practices of trademark management over the years in accordance with the relevant provisions of laws, administrative regulations and departmental rules, focused on typical problems in the practice of administrative law enforcement, and formulated the "Standards" to provide specific operational guidelines for law enforcement departments to administrate according to law. Effectively strengthen trademark management.
Article 2
Article 3
Any of the following acts are generally illegal trademarks:
(1) Violation Trademark law Where, as provided in Article 6, a registered trademark must be used but is not used;
(2) Violation Trademark law Article 10 Where a mark that cannot be used as a trademark is used;
(3) Violation Trademark law Article 14 (5) where the words "well-known trademark" are used in commercial activities;
(4) Violation Trademark law Article 43 Where the trademark licensee fails to indicate its name and the place of origin of the goods;
(5) Violation Trademark law Article 49 where, in the course of using a registered trademark, a trademark registrant changes the registered trademark, the registrant's name, address or any other registered matter;
(6) Violation Trademark law Article 52 where an unregistered trademark is used as a registered trademark;
(7) ViolationTrademark Law enforcement regulations Article 4 (2) and the Measures for the Registration and Administration of Collective Trademarks and Certification Marks as provided in Articles 14, 15, 17, 18, 20 and 21, failing to perform the obligations of the administration of collective trademarks and certification marks;
(8) failing to perform the duties of trademark printing administration in violation of Articles 7 to 10 of the Measures for the Administration of Trademark Printing;
(9) Applying for trademark registration in bad faith in violation of Article 3 of the Provisions on Regulating the Conduct of Trademark Application Registration;
(10) Other violations of trademark administration order.
This article provides the meaning and specific types of trademark violations in general.
"Trademark generally illegal" is a fixed expression formed in practice, which refers to the violation of trademark management order but does not infringe on the exclusive right of others to use trademarks. The "general" in "general illegal" refers to the situation of illegal, not the circumstances of illegal, so "general illegal" is not the concept corresponding to "serious illegal", but the concept of "infringement and counterfeiting" that infringes on the exclusive right of a specific trademark. The scope of cases applicable to the Standard is mainly those that violate the order of trademark administration. On the basis of Trademark law Trademark Law enforcement regulations As for the relevant provisions of laws, regulations and rules such as "Measures for the Registration and Administration of Collective Trademarks and Certification Trademarks", "Measures for the Administration of Trademark Printing" and "Several Provisions on Regulating the registration of trademark Applications", this article provides ten specific situations of general illegal acts of trademarks in the way of listing and supporting clauses, which are both clear and open. These ten situations involve compulsory registration, prohibition of use, publicity of well-known trademarks, obligations of licensees, change of registration matters by themselves, management of impersonating registered trademarks, collective trademarks and certification trademarks, management of trademark printing and malicious applications.
Article 4
This article provides for the circumstances under which the use of registered trademark goods is compulsory.
Trademark law Article 4, paragraph 1, provides: "Where a natural person, legal person or other organization, in the course of production or business activities, needs to obtain the exclusive right to use a trademark for its goods or services, it shall apply to the Trademark Office for trademark registration." Article 6: "For goods that are required by law or administrative regulations to use a registered trademark, an application must be filed for trademark registration. Without approval for registration, no goods may be sold on the market." Trademark law It provides a trademark registration system with voluntary registration as the principle and compulsory registration as the exception. For general goods or services, the operator wishes to obtain the exclusive right to use the trademark, need to apply for trademark registration; Where laws or administrative regulations require the use of a registered trademark for goods or services, its operators must apply for trademark registration, and the use of a trademark that has been approved and registered is a prerequisite for entering the market.
Among the existing laws and administrative regulations, only the Law of the People's Republic of China on Tobacco Monopoly and the Regulations on the Implementation of the Law of the People's Republic of China on Tobacco Monopoly make provisions on the goods or services that must use registered trademarks. Article 19, paragraph 1, of the Tobacco Monopoly Law of the People's Republic of China stipulates: "Applications for trademark registration must be applied for cigarettes, cigars and packaged tobacco. Without approval and registration, no production or sale may be allowed." Article 22 of the Regulations on the Implementation of the Tobacco Monopoly Law of the People's Republic of China stipulates: "Registered trademarks shall be used for cigarettes, cigars and packaged tobacco." Article 65: "Electronic cigarettes and other new tobacco products shall be implemented in accordance with the relevant provisions of these Regulations on cigarettes." According to the above provisions, the goods that must use registered trademarks are limited to cigarettes, cigars, packaged tobacco and electronic cigarettes and other new tobacco products. Registered trademark refers to a valid trademark registered in China, and its approved use of goods should include cigarettes, cigars, packaged tobacco and electronic cigarettes and other new tobacco products. Imported tobacco products and imported new tobacco products such as electronic cigarettes should also comply with the above provisions. Practice has proved that on the basis of the voluntary registration of trademarks, it is indeed necessary to retain the compulsory registration system in some special commodities and manage commodities through trademarks. New tobacco products such as cigarettes, cigars, packaged tobacco and electronic cigarettes are strictly controlled commodities as stipulated in the Tobacco Monopoly Law of the People's Republic of China and its implementing regulations, and their trademark registration and management should also be strict, and the trademarks used in them should be approved and registered before they can be used.
In addition, the department regulations for other special commodities also have the mandatory use of registered trademarks, such as the department regulations formulated by the former Ministry of Agriculture "Pesticide labels and instructions management Measures" (2017 Ministry of Agriculture order No. 7) Article 31 stipulates: "Pesticide labels and instructions shall not use unregistered trademarks. If the label uses a registered trademark, it shall be marked on the four corners of the label, the area of the label shall not exceed one-ninth of the area, and the size of the text part shall not be larger than the size of the pesticide name."
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