Trademark adjudication standard
description
In order to further standardize and do a good job in trademark examination and trademark trial, in accordance with the provisions of the Trademark Act in 2001 and the Trademark Law enforcement regulations in 2002, on the basis of the Trademark Examination Guidelines formulated by the Trademark Office in 1994 and the Trademark Review and Adjudication Criteria (Trial) formulated by the Trademark Review and Adjudication Board in 2001, Based on the practice of trademark examination and trial for many years, and drawing on foreign standards for trademark examination, the Trademark Office and the Trademark Review and Adjudication Board formulated the Standards for Trademark Examination and Trial. This standard has been approved by the State Administration for Industry and Commerce, and is hereby issued for all examiners of the Trademark Office and the Trademark Review and Adjudication Committee to implement when examining trademarks and hearing trademark cases.
catalogue
1. Trial standards for copying, imitating or translating well-known trademarks of others ……………… 2
2.Standards for the trial of trademark registration of principal or represented without authorization …………… 10
3.Standards for adjudication of Prejudice to the Prior rights of others ……………………………… 15
4.Squatting has been used by others and has a certain impact on trademark trial standards …………… 23
5. Standards for obtaining trademark registration by deception or other improper means 27
6.Standards for hearing cases of revocation of registered trademarks ……………………………… 30
7.Processing standards for Similar Commodities or services ………………………………… 39
8.Criteria for adjudication of marks with distinctive features obtained through use ……………………… 44
1. Standards for copying, imitating or translating well-known trademarks of others
Trademark Act article 13 Where a trademark applied for registration in respect of identical or similar goods is a reproduction, imitation or translation of another person's well-known trademark that has not been registered in China and is likely to cause confusion, it shall not be registered and shall be prohibited from use.
Where a trademark applied for registration in respect of a different or dissimilar commodity is a reproduction, imitation or translation of another person's well-known trademark already registered in China, which misleads the public and may cause damage to the interests of the registrant of the well-known trademark, it shall not be registered and shall be prohibited from use.
Article 14 of the Trademark Act in determining a well-known trademark, the following factors shall be taken into account:
(1) the degree of public awareness of the trademark;
(2) the duration of use of the trademark;
(3) the duration, extent and geographical scope of any publicity of the trademark;
(4) Records of the protection of the trademark as a well-known trademark;
(5) Other factors for which the trademark is well-known.
Trademark Law enforcement regulations Article 5 Where a dispute arises in the course of trademark registration or trademark review and adjudication in accordance with the provisions of the Trademark Law and these Regulations, where the parties concerned consider that their trademark constitutes a well-known trademark, they may apply to the Trademark Office or the Trademark Review and Adjudication Board for recognition of the well-known trademark accordingly. Reject an application for trademark registration in violation of Article 13 of the Trademark Law or cancel the registration of a trademark in violation of Article 13 of the Trademark Law. When filing an application, the parties concerned shall submit evidentiary materials showing that their trademarks constitute well-known trademarks.
The Trademark Office and the Trademark Review and Adjudication Board shall, at the request of the parties concerned and on the basis of ascertaining the facts, determine whether the trademark constitutes a well-known trademark in accordance with the provisions of Article 14 of the Trademark Law.
1. Introduction
The above provisions reflect the protection of well-known trademarks, that is, from the perspective of protecting the interests of well-known trademark owners and safeguarding fair competition and consumer rights and interests, the trademark registration behavior that may take advantage of the popularity and reputation of well-known trademarks, cause market confusion or public misrecognition, and cause damage to the interests of well-known trademark owners may be prohibited. To remedy the shortcomings of strict application of the registration principle which may cause unfair consequences.
In trademark objections, review of objections and trial of dispute cases involving reproduction, imitation or translation of well-known trademarks of others, this standard shall be used as the principle for case-by-case determination.
2. Applicable requirements
2.1 The application of Article 13, paragraph 1, of the Trademark Act shall meet the following requirements:
(1) the trademark of another person has been well-known before the date of application for the contested trademark but has not been registered in China;
(2) The contested trademark constitutes a copy, imitation or translation of a well-known trademark of another person;
(3) the goods/services used in the contested trademark are the same or similar to those used in the well-known trademark of another person;
(4) The registration or use of a disputed trademark is likely to lead to confusion.
2.2 The application of Article 13, paragraph 2, of the Trademark Act shall meet the following requ
irements:
(1) the trademark of another person is well-known and has been registered in China before the date of application for the contested trademark;
(2) The contested trademark constitutes a copy, imitation or translation of a well-known trademark of another person;
(3) the goods/services used in the contested trademark are not the same or similar to those used in the well-known trademark of another person;
(4) The registration or use of the disputed trademark misleads the public, resulting in the interests of the well-known trademark registrant may be harmed.
3. Determination of well-known trademarks
3.1 Well-known trademark refers to a trademark that is widely known and enjoys a high reputation among the relevant public in China.
Relevant members of the public include but are not limited to the following:
(1) The producer of the goods or the provider of services identified in the trademark;
(2) Consumers of the goods/services identified by the trademark;
(3) The operators and relevant personnel involved in the distribution channels of the goods/services identified by the trademark.
3.2 In determining whether a trademark of another person constitutes a well-known trademark, the following factors shall be taken into account according to the circumstances of the case, but not on the premise that the trademark must meet all of the following factors:
(1) the extent to which the relevant public is aware of the trademark;
(2) the duration of use of the trademark;
(3) the duration, extent and geographical extent of any publicity of the mark;
(4) a record of the protection of the trademark as a well-known trademark;
(5) the registration of the trademark;
(6) other factors for which the trademark is well-known.
3.3 The above reference factors for the identification of well-known trademarks can be proved by the following evidentiary materials:
(1) Contracts, invoices, bills of lading, bank statements, import and export credentials of the goods/services used by the trademark;
(2) Information about the sales area, distribution of sales outlets and sales channels and methods of the goods/services used by the trademark;
(3) Radio, film, television, newspaper, periodical, Internet, outdoor and other media advertisements, media reviews and other promotional materials involving the trademark;
(4) Information about the exhibitions and expositions in which the goods/services used by the trademark participate;
(5) Information about the earliest and continuing use of the trademark;
(6) The registration certificate of the trademark in China, foreign countries and relevant regions;
(7) The relevant documents that the trademark administrative authority or judicial authority has recognized the trademark as a well-known trademark and granted protection, and the situation of the trademark being infringed or counterfeit;
(8) The evaluation report of the intangible assets of the trademark issued by a qualified evaluation institution;
(9) The statistics of sales, profits and taxes, output value of the goods/services used by the trademark published or issued by authoritative institutions and trade associations with credibility, and their rankings and advertising statistics;
(10) The award of the trademark;
(11) Other information that can prove the popularity of the trademark.
In principle, the above evidence is limited to the evidence before the filing date of the contested trademark.
3.4 The evidentiary materials provided to prove that the trademark is well-known shall not be limited to China, but the foreign evidentiary materials submitted by the parties shall be able to prove that the trademark is known by the relevant Chinese public.
The identification of a well-known trademark is not based on the premise that the trademark is registered in China, applied for registration, or the goods/services used by the trademark are actually produced, sold or provided in China. The publicity activities of the goods/services used by the trademark are also the use of the trademark, and the relevant information can be used as evidence to judge whether the trademark is well-known.
The evidentiary materials used to prove the duration and circumstances of the continued use of the trademark should be able to show the trademark logo used, the goods/services, the date of use and the person who used it.
3.5 In the trial of a case involving a well-known trademark that has been recognized by the trademark administrative authority or the judicial authority, if the other party does not object to the well-known trademark, it may be recognized. If the other party has objections to the well-known trademark, it shall re-examine the well-known trademark materials and make a determination in accordance with the provisions of Article 14 of the Trademark Law.
4. Judgment of copying, imitating or translating well-known trademarks of others
4.1 Duplication means that the contested trademark is identical with a well-known trademark of another person.
4.2 Imitation means that the contested trademark is copied from another person's well-known trademark, and the prominent part or prominent features of another person's well-known trademark are copied.
The prominent part or prominent feature of a well-known trademark refers to the part or feature that the well-known trademark relies on for its main identification, including the specific text or its combination and font expression, the specific pattern composition and expression, and the specific color combination.
4.3 Translation means that the contested trademark expresses the well-known trademark of another person in a different language, and the language has established a corresponding relationship with the well-known trademark of another person, and is widely known or used by the relevant public.
5. Determination of the possibility of confusion and misdirection
5.1 Confusion and misdirection are misidentifications of the source of goods/services caused by guidance. Confusion and misdirection include the following situations:
(1) The consumer misidentifies the origin of the goods/services and believes that the goods/services marked with the contested trademark are produced or provided by the well-known trademark owner;
(2) To make consumers think that the producer of the goods or service provider whose trademark is contested has some connection with the owner of the well-known trademark, such as an investment relationship, licensing relationship or cooperative relationship.
5.2 The determination of confusion and misdirection is not based on the actual occurrence of confusion and misdirection, only need to determine whether there is a possibility of confusion and misdirection.
5.3 In determining the possibility of confusion and misdirection, the following factors shall be comprehensively considered:
(1) the degree of similarity between the contested mark and the cited mark;
(2) the originality of the quoted mark;
(3) the popularity of the quoted trademark;
(4) the degree of connection between the goods/services used by the contested mark and the cited mark;
(5) other factors that may lead to confusion or misdirection.
6. Determination of the scope of protection of well-known trademarks
6.1 For well-known trademarks not registered in China, the scope of protection shall extend to the same or similar goods/services in accordance with Article 13, paragraph 1, of Trademark Act.
6.2 For well-known trademarks that have been registered in China, the scope of protection shall cover different or dissimilar goods/services in accordance with Article 13, paragraph 2, of Trademark Act.
The expansion of the scope of protection of registered well-known trademarks in respect of different or dissimilar goods/services should be based on the possibility of confusion and misdirection. The specific scope of protection in a case shall be determined by taking into account the factors listed in 5.3 of this standard.
7. Judgment of interested parties
According to the provisions of the second paragraph of Article 41 of Trademark Act, in addition to the well-known trademark owner, an interested party may also request the Trademark Review and Adjudication Board to revoke a registered trademark. The following subjects are interested parties:
(1) the licensee of a well-known trademark;
(2) other subjects that have evidence to prove that they have an interest in the case.
Whether it is an interested party shall be subject to the application for review. However, those who already have an interest at the time of the trial shall also be identified as interested parties.
8. Determination of malicious registration
Where a well-known trademark is copied, copied or translated, the owner of the well-known trademark or an interested party may request the Trademark Review and Adjudication Board to cancel the contested trademark within five years from the date of registration of the trademark, but where the registration is made in bad faith, the time limit for the owner of the well-known trademark to request the cancellation of the contested trademark is not limited to five years.
The following factors may be considered in determining whether a contested trademark applicant is in bad faith:
(1) the applicant for the disputed trademark has had trade or cooperative relations with the well-known trademark owner;
(2) the applicant for the disputed trademark and the well-known trademark owner live in the same territory or the goods/services of both parties have the same sales channels and geographical scope;
(3) where there have been other disputes between the applicant and the owner of the well-known trademark, the well-known trademark can be known;
(4) the applicant for the disputed trademark and the well-known trademark owner have had internal contacts;
(5) after the registration of the disputed trademark, the applicant uses the reputation and influence of the well-known trademark to mislead and publicize, coerces the owner of the well-known trademark to conduct trade cooperation with the owner of the well-known trademark, and asks the owner of the well-known trademark or others for high transfer fees, licensing fees or infringement damages;
(6) well-known trademarks have strong originality;
(7) other circumstances that can be identified as bad faith.
2. Trial standards for the unauthorized registration of a principal or represented trademark
Trademark ActArticle 15 Where an agent or representative registers the trademark of the principal or the represented in his own name without authorization, and the principal or the represented raises an objection, the registration shall not be granted and the use shall be prohibited.
1. Introduction
The act of an agent or representative registering the trademark of the principal or the represented without authorization violates the principle of good faith and infringes on the legitimate rights and interests of the principal, the represented or the interested party. The above provisions aim to prohibit the act of the agent or the representative to register the trademark in bad faith.
In the trademark opposition, opposition review and dispute trial, involving the agent or representative without authorization to register the principal or the represented trademark, the principle of this standard for the case judgment.
2. Applicable requirements
Where an agent or representative is found to have registered the trademark of the principal or the represented without authorization, the following conditions shall be met:
(1) Where the applicant for trademark registration is the agent or representative of the trademark owner, but has the circumstances provided for in paragraph 2 of Article 5 of this Standard, such provisions shall apply;
(2) The contested trademark is designated to be used on goods/services identical with or similar to the goods/services used in the trademark of the principal or the represented;
(3) the contested trademark is the same or similar to the trademark of the principal or the represented;
(4) The agent or representative cannot prove that his application for registration has been authorized by the principal or the representative.
In a trademark dispute case, the principal, the principal or the interested party shall file a request for cancellation within five years from the date on which the trademark registration is contested.
3. Determination of agency relationship and representative relationship
3.1 The content of Article 15 of Trademark Act is derived from the provisions of Article 6/7 of the Paris Convention for the Protection of Industrial Property, so the agency relationship should be interpreted in conjunction with the legislative purpose of the article, that is, to stop the malicious registration of agents in violation of the principle of good faith. The agent mentioned in this article not only includes the agent stipulated in the General Principles of the Civil Law of the People's Republic of China and the Contract Law of the People's Republic of China, but also includes the dealer who can know the agent's trademark based on commercial business dealings.
A representative refers to an individual who has a specific identity subordinate to the representative, performs duties and can know the trademark of the representative, including legal representative, director, supervisor, manager, executive of partnership affairs, etc.
3.2 After the end of the agency relationship, if the agent applies for registration of the principal's trademark, which may cause damage to the interests of the principal or interested parties, it may still apply Article 15 of the Trademark Law to determine whether the registration is not approved or the contested trademark is revoked.
After the end of the representative relationship, the malicious registration of the representative may be executed with reference to the preceding paragraph.
3.3 The principal may prove the existence of the agency relationship with the following evidentiary materials:
(1) A contract signed by the parties;
(2) Transaction vouchers, procurement materials and other evidentiary materials between the two parties that can prove the existence of contractual relationship or commercial business transactions;
(3) Other evidentiary materials that can prove the agency relationship.
The representative can prove the existence of the representative relationship with the following evidentiary materials:
(1) Enterprise registration data;
(2) Payroll, labor contract, employment documents, social insurance, medical insurance materials of the enterprise;
(3) Other evidentiary materials that can prove that a party has a specific identity subordinate to the representative, performs duties and can know the trademark of the representative.
4. Trademarks of the principal and the representative
4.1 Trademarks of the principal include:
(1) the trademark of the principal specified in the contract or the authorization document;
(2) If there is no agreement between the parties, when the agency relationship has been established, the trademark that has been previously used by the principal in the commodities/services distributed by the principal shall be deemed as the principal's trademark;
(3) If there is no agreement between the parties, if the trademark used by the agent in the goods/services it distributes is enough to cause the relevant public to believe that the trademark is a mark that indicates the difference between the agent's goods/services and the goods/services of others, then the trademark shall be deemed to be the principal's trademark in the goods/services of the principal.
4.2 Trademarks of the represented include:
(1) The trademark already used by the representative;
(2) Other trademarks belonging to the represented according to law.
(5) The application for registration of the contested trademark is filed in the name of the agent or representative himself.
Although not in the name of an agent or representative to apply for registration of the principal or representative of the trademark, but there is evidence to prove that the registration applicant and the agent or representative of the act of collusion, shall apply the Trademark Law Article 15 of the judgment not to approve the registration or cancel the contested trademark.
6. The scope of protection of the trademark of the principal and the represented is not limited to the same goods/services as the goods/services used in the trademark, but also to similar goods/services.
7. The trademark marks for which an agent or representative may not apply for registration are not limited to marks identical with the trademark of the principal or the represented, but also include marks similar to the trademark of the principal or the represented.
8, the agent, representative to obtain the trademark registration authorization judgment
8.1 The contents authorized by the principal and the representative shall include the goods/services and trademark marks that the agent and the representative can register, and the expression of the intention of authorization shall be clear and clear.
8.2 The agent or representative shall submit the following evidential materials to prove the existence of the authorized facts:
(1) Written authorization documents issued by the principal or the principal to the agent or the representative;
(2) Other evidence that can be determined that the principal or the represented has made a clear and explicit expression of the intention to authorize the agent or the representative.
8.3 Although an agent or representative does not obtain the express authorization of the principal or the represented when applying for registration, if the principal or the represented subsequently ratifies the application for registration, the agent or the representative shall be deemed to have obtained the authorization of the principal or the represented.
9. Determination of interested parties
In accordance with the provisions of the second paragraph of Article 41 of the Trademark Law, in addition to the principal or the representative, an interested party may also request the Trademark Review and Adjudication Board to make a ruling to cancel the contested trademark. The following subjects are interested parties:
(1) the legal successor of the principal or the represented trademark;
(2) the principal or the licensee of the trademark represented;
(3) other subjects that have evidence to prove that they have an interest in the case.
Whether he is an interested party shall be subject to the application for review. However, those who already have an interest at the time of the trial shall also be identified as interested parties.
3. Trial standards for damages to the prior rights of others
Article 31 An application for trademark registration shall not prejudice the existing prior rights of others... .
1. Introduction
The trademark applied for registration shall have precedence, which means that the trademark applied for registration shall not conflict with the trademark previously applied for or registered by another person, nor shall it conflict with other legal rights previously obtained by another person. Since other provisions of the Trademark Law have made corresponding provisions on the protection of prior trademark rights, the prior rights stipulated in this article refer to other rights other than trademark rights that have been acquired before the date of application for registration of the contested trademark, including trade name rights, Copyrights, design patents, name rights, portrait rights, etc.
In trademark objections, review of objections and trial of disputed cases, involving the protection of prior rights, the principle of this standard for case determination.
2. Right of trade name
2.1 Where an application for registration as a trademark applies for the same or basically the same words as a trade name previously registered and used by another person with certain popularity, which is likely to cause confusion among the relevant Chinese public and may damage the interests of the prior trade name owner, it shall be deemed as an infringement of the prior trade name right of another person, and the contested trademark shall not be approved for registration or be revoked.
2.2 Applicable Requirements
(1) the date of registration and use of the trade name shall be earlier than the date of application for registration of the contested trademark;
(2) the firm has a certain popularity among the relevant Chinese public;
(3) The registration and use of contested trademarks can easily lead to confusion among the relevant public, which may cause damage to the interests of the owner of the prior trade name.
2.3 Definition of prior trade name rights
Where trade name right is used against a contested trademark, the date of registration and use of the trade name shall be earlier than the date of application for registration of the contested trademark.
The fact of the prior enjoyment of the right of trade name may be proved by the registration of the enterprise, the use of the commodity transaction documents of the firm, advertising and publicity materials, etc.
2.4 Determination of the possibility of confusion
The likelihood of confusion means that the registration and use of the contested mark will cause related public concern
People mistakenly believe that the goods/services identified by the trademark come from the trade name owner, or have a specific connection with the trade name owner.
The recognition of contested trademark is easy to be confused with the prior trade name, which may damage the prior trade name
The interests of the right holders shall take into account the following factors:
(1) The originality of the first firm.
If the words used by the trade name are not common words, but have no exact meaning
The invented words can be regarded as original.
(2) The popularity of the leading firm.
To determine whether the leading firm has a reputation among the relevant public, it should be examined from the registration time of the firm, the time span of using the firm to engage in business activities, geographical scope, business performance, advertising and other aspects.
(3) the goods/services for which the trademark is specified and the goods provided by the owner of the trade name
/ Services should be identical or similar in principle.
2.5 Protection Scope
The scope of protection for the leading firm is determined in each case based on its originality, popularity and the degree of connection between the two parties' goods/services.
3. Copyright
3.1 Without the permission of the copyright owner, the application for the registration of a trademark of another person's copyrighted work shall be deemed as an infringement of the prior copyright of another person, and the contested trademark shall not be approved for registration or shall be revoked.
3.2 Applicable Requirements
(1) The contested trademark is identical or substantially similar to the work in which the copyright was previously held by another person.
(2) The applicant for trademark registration has had or is likely to have had access to the copyrighted works of others.
(3) The applicant for trademark registration does not have the permission of the copyright owner.
3.3 Definition of prior copyright
Prior enjoyment of copyright means that, before the date of registration of the contested trademark application, another person has obtained the copyright through the creation of the work, inheritance, transfer, etc.
The fact of the prior enjoyment of copyright can be proved by the following evidential materials: copyright registration certificate, evidence of the prior publication of the work, evidence of the prior creation of the work, evidence of the prior acquisition of copyright through inheritance, transfer, etc.
In the absence of sufficient evidence to the contrary, the fact that the parties previously enjoyed copyright as confirmed in the effective judgment document may be recognized.
3.4 "Work" means the object protected by the Copyright Law of the People's Republic of China.
3.5 If the applicant for contested trademark registration can prove that the contested trademark was created independently, it does not constitute an infringement of the prior copyright of another person.
3.6 The applicant for contested trademark registration shall bear the burden of proof on the fact that he claims to have obtained the permission of the copyright owner.
According to the relevant provisions of the Copyright Law of the People's Republic of China and its Implementing Regulations, the applicant for the registration of contested trademarks shall provide evidence to prove that: the applicant for the registration of contested trademarks has signed a copyright license contract with the copyright owner; Or the copyright owner has made a direct and explicit intention to license the use of the work to apply for a registered trademark.
4. Design patent right
4.1 Where, without authorization, an application is made for the registration of a trademark on the same or similar goods for a design which is patented by another person, it shall be deemed as an infringement of the prior patent right of another person for a design, and the contested trademark shall not be approved for registration or shall be revoked.
4.2 Applicable Requirements
(1) The date of the announcement of the authorization of the design patent is earlier than the date of registration of the contested trademark application and the date of use;
(2) the contested trademark and the design are used for the same or similar goods;
(3) the contested trademark is identical or similar to the design;
4.3 Definition of prior design patent rights of others
The date of the announcement of the authorization of a design patent shall be earlier than the date of application for registration of the contested trademark and the date of use.
Where a party claims to have a prior patent right for a design, it shall submit such evidentiary materials as the certificate of the patent for a design and the certificate of payment of the annual fee to prove it.
4.4 Where the contested trademark and the design are used for the same or similar goods, if the goods are not identical or similar, it shall not be deemed to infringe the patent right for the design.
4.5 As for the determination that the contested trademark is identical or similar to the design, it can be compared with the design as a whole, or the significant part of the subject of the contested trademark can be compared with the important part of the design.
For the determination that the contested trademark is identical or similar to the design, the examination standards for the same or similar trademark shall apply in principle. The words in the design patent only protect its special form, and the meaning is not within the scope of patent protection.
4.6 The applicant for the registration of a contested trademark shall bear the burden of proof on the fact that it claims to have obtained the authorization of the design patentee.
5. Right to name
5.1 Where, without permission, another person's name is applied for the registration of a trademark, which causes or may cause damage to the right to the name of another person, the contested trademark shall not be approved for registration or shall be revoked.
5.2 Applicable Requirements
(1) the disputed trademark is the same as the name of another person;
(2) The registration of the disputed trademark causes or may cause damage to the right to the name of others
5.3 The name of another person shall include real name, pen name, stage name, alias, etc.
"Others" means living natural persons.
"Identical" refers to the use of words that are exactly the same as another person's name, or a translation of another person's name, pointing to the person with the right to the name in the public perception.
5.4 In determining whether the contested trademark damages the right to the name of others, the degree of awareness of the name owner among the public should be taken into account.
5.5 The applicant for trademark registration shall bear the burden of proof on the fact that he claims to have obtained the permission of the name owner.
Without permission to use the name of a public figure to apply for a registered trademark, or knowing that the name of another person, but based on the purpose of damaging the interests of others to apply for a registered trademark, shall be found to be an infringement of the right to name of others.
Where the owner of the name withdraws the license before the date of application for registration of the disputed trademark, where the owner of the name applies for registration of the trademark beyond the goods/services licensed by the owner of the name, and where the owner of the name applies for registration of the trademark on the use of goods/services not explicitly approved by the owner of the name, it shall be deemed as unauthorized.
5.6 Where the use of a name to apply for a registered trademark is detrimental to public order and good customs or has other adverse effects, it shall be examined in accordance with the provisions of Article 10, Paragraph 1 (8) of the Trademark Law.
6. Portrait rights
6.1 Where, without permission, another person's portrait is applied for a trademark registration, which causes or may cause damage to another person's portrait right, the contested trademark shall not be approved for registration or shall be revoked.
6.2 Application Requirements
(1) the contested trademark is identical or similar to the likeness of another person;
(2) The registration of the disputed trademark causes or may cause damage to the portrait rights of others.
6.3 Portraits of others include portrait photographs, portraits, etc.
"Others" means living natural persons.
"Identical" means that the contested trademark is identical to the likeness of another person.
"Similar" means that although the contested trademark is different from the portrait of others in composition, it reflects the main image characteristics of others and points to the portrait right holder in the public's cognition.
6.4 The applicant for trademark registration shall bear the burden of proof on the fact that he claims to have obtained the permission of the portrait right owner.
Without permission to use the portrait of a public figure to apply for a registered trademark, or knowingly for the portrait of another person to apply for a registered trademark, shall be deemed as an infringement of the right of portrait of another person.
If the portrait right owner withdraws the license before the date of application for registration of the disputed trademark, if the portrait right owner applies for registration of the trademark beyond the goods/services licensed by the portrait right owner, if the portrait right owner applies for registration of the trademark on the use of goods/services not explicitly approved by the portrait right owner, it shall be deemed as unauthorized.
6.5 Where the use of another person's portrait to apply for a registered trademark is detrimental to public order and good customs or has other adverse effects, it shall be examined in accordance with the provisions of Article 10, Paragraph 1 (8) of the Trademark Law.
(7) Where the prior right holder or interested party requests the Trademark Review and Adjudication Board to revoke the contested trademark, the request shall be filed within five years from the date of registration of the contested trademark. The following subjects are interested parties:
(1) the licensee of prior rights;
(2) Other subjects that have evidence to prove that they have an interest in the case.
Whether he is an interested party shall be subject to the application for review. However, those who already have an interest at the time of the trial shall also be identified as interested parties.
Fourth, squatting has been used by others and has a certain impact on trademark trial standards
Article 31 Application for Trademark Registration...... Nor may it preempt the registration of a trademark that has been used by others and has certain influence by improper means.
1. Introduction
The above provisions are based on the principle of good faith, to protect trademarks that have been used and have certain influence, to stop the act of squatting by unfair means, and to make up for the lack of unfair consequences that may be caused by the strict implementation of the registration principle.
In trademark objections, review of objections and trial of disputed cases, involving the registration of others has been used and has a certain impact on the trademark issue, the principle of this standard for case determination.
2. Applicable requirements
(1) the trademark of another person has been used before the filing date of the contested trademark and has certain influence;
(2) the contested trademark is identical with or similar to the trademark of another person;
(3) the goods/services used in the contested trademark are identical or similar in principle to those used in the trademark of another person;
(4) The applicant for the trademark dispute has bad faith.
Where the owner or interested party who has previously used and had certain influence on the trademark requests the cancellation of the contested trademark in accordance with the provisions of Article 31 of the Trademark Law, the request shall be filed within five years from the date of registration of the contested trademark.
3, has been used and has a certain impact on the trademark judgment
3.1 Trademarks that have been used and have certain influence refer to unregistered trademarks that have been used in China and are known to the relevant public within a certain geographical range.
The judgment of the relevant public shall be governed by the provisions of 3.1 of the Trial Standards for Copying, imitating or Translating Well-known Trademarks of Others.
3.2 To determine whether a trademark has a certain impact, the following factors shall be considered comprehensively in the circumstances of the case, but not on the premise that the trademark must meet all of the following factors:
(1) the relevant public's knowledge of the trademark;
(2) the duration and geographical extent of the use of the mark;
(3) the time, manner, extent and geographical scope of any publicity of the trademark;
(4) Other factors that cause the trademark to have a certain influence.
3.3 The above reference factors can be supported by the following evidence:
(1) Contracts, invoices, bills of lading, bank statements, import and export credentials of the goods/services used by the trademark;
(2) Information about the sales area, sales channels and methods of the goods/services used by the trademark;
(3) Radio, film, television, newspaper, periodical, Internet, outdoor and other media advertisements, media reviews and other promotional materials involving the trademark;
(4) Relevant information about the commodities/services used by the trademark to participate in exhibitions and expositions;
(5) Relevant information such as the earliest creation time and continuous use of the trademark;
(6) The award of the trademark;
(7) Other information that can prove that the trademark has a certain influence.
3.4 The evidentiary materials used to prove the use of the trademark should be able to show the trademark logo used, the goods/services, the date of use and the user.
3.5 Whether a trademark has a certain impact is determined in principle by the date of application of the contested trademark.
4. Determination of bad faith
To determine whether the disputing trademark applicant has bad faith, the following factors can be taken into account:
(1) the applicant for the disputed trademark has had trade or cooperative relations with the prior user;
(2) where the applicant and the prior user share the same territory or the goods/services of both parties have the same sales channels and geographical scope;
(3) if the applicant has had other disputes with the prior user, it can know the trademark of the prior user;
(4) the applicant for the disputed trademark had an internal relationship with the prior user;
(5) After the registration of the disputed trademark, the applicant has the purpose of seeking improper benefits, using the reputation and influence of the prior user to a certain extent to mislead the publicity, coercing the prior user to conduct trade cooperation with it, and demanding high transfer fees, license fees or infringement damages from the prior user or others;
(6) the trademark of another person has strong originality;
(7) Other circumstances that can be identified as bad faith.
5. Judgment of interested parties
According to the provisions of the second paragraph of Article 41 of the Trademark Law, in addition to the trademark owner, an interested party may also request the Trademark Review and Adjudication Board to revoke the contested trademark. The following subjects are interested parties:
(1) the licensee who has certain influence on the trademark;
(2) Other subjects that have evidence to prove that they have an interest in the case.
Whether it is an interested party shall be subject to the application for review. However, those who already have an interest at the time of the trial shall also be identified as interested parties.
5. Standards for obtaining trademark registration by deception or other improper means
Article 41 (1) of the Trademark Law has registered a trademark... Where a registration is obtained by fraudulent means or any other unfair means, the trademark Office shall cancel the registered trademark; Any other entity or individual may request the Trademark Review and Adjudication Board to make a ruling to cancel the registered trademark.
1. Introduction
The application for trademark registration shall abide by the principle of good faith, and shall not deceive the trademark administrative authority by false means to obtain the registration, nor shall it be registered in bad faith for the purpose of unfair competition or seeking illegal interests.
Where the issue of obtaining trademark registration by fraudulent means or other improper means is involved, the case judgment shall be made in accordance with the principle of this standard.
2. Applicable requirements
2.1 The act of deceiving the trademark administrative authority to obtain trademark registration by false means.
This situation refers to the disputing trademark registrant when applying for the registration of the trademark
The act of fabricating or concealing the truth or submitting forged application forms or other supporting documents to the trademark administrative authority in order to defraud trademark registration. Including but not limited to the following situations:
(1) Forging the signature of the application form;
(2) The act of forging or altering the applicant's principal qualification documents, including the use of false identity cards, business licenses and other principal qualification documents, or the act of altering the important registration items on the identity cards, business licenses and other principal qualification documents;
(3) Forgery of other supporting documents.
2.2 Conduct registration in bad faith for the purpose of unfair competition and seeking illegal benefits.
Such a situation means that, in addition to the circumstances provided for in articles 13, 15, 31, etc., of the Trademark Law, there is sufficient evidence to prove that the registrant of the disputed trademark knowingly or should have known that the trademark was previously used by another person, and his act violates the principle of good faith, damages the legitimate rights and interests of others, and damages the market order of fair competition. A contested trademark shall not be approved for registration or shall be revoked.
In order to urge the parties to exercise their rights in a timely manner and maintain the relative stability of the legal relationship of the trademark, where the prior user of the trademark considers that the registration of the contested trademark belongs to this situation and requests the cancellation, the trademark dispute adjudication application shall be submitted to the Trademark Review and Adjudication Board within five years from the date of the registration of the contested trademark with reference to the provisions of the second paragraph of Article 41 of the Trademark Law regarding the time limit.
(1) To determine whether the disputing trademark registrant has bad faith, the following factors can be comprehensively considered:
① The applicant for the disputed trademark has had trade dealings or cooperative relations with others;
② The applicant and others share the same territory or the goods/services of both parties have the same sales channels and scope;
③ The applicant for the contested trademark has had other disputes involving the contested trademark with others
Confused;
④ There is an internal relationship between the applicant and others;
⑤ After the trademark registration is contested, the trademark registrant is contested for improper benefits
Coercing others to engage in trade cooperation with them, or demanding from others a high transfer fee, licensing fee or tort compensation;
⑥ other people's trademarks have strong originality;
⑦ Other circumstances that can be determined as knowing or should have known.
(2) The contested trademark is a trademark previously used by another person.
Prior use means that before the date of registration of the contested trademark application, another person has been in China
The country uses the trademark.
(3) Scope of protection
The scope of protection of a prior use mark is in principle limited to goods/services identical to or similar to the goods/services in which the mark is used.
6. Trial standards for cancellation of registered trademark cases
This standard is divided into three parts: "Trial of revocation cases due to improper registration of trademarks", "trial of revocation cases due to trademark use and related acts", "Trial of revocation cases due to product quality problems".
Where the issue of revocation of a registered trademark is involved, a case judgment shall be made in accordance with the principle of this standard.
The first part is the trial of the cancellation case due to improper registration of trademarks
Where a trademark that has been registered in paragraph 1 of Article 41 of the Trademark Law violates the provisions of Articles 10, 11 or 12 of this Law, or the registration has been obtained by deception or other unfair means, the Trademark Office shall cancel the registered trademark... .
Article 49 (1) Any party dissatisfied with the decision of the Trademark Office to revoke a registered trademark may, within 15 days from the date of receipt of the notification, apply to the Trademark Review and Adjudication Board for a review, and the Trademark Review and Adjudication Board shall make a decision... .
1. Introduction
The above law stipulates the substantive requirements and procedural requirements for revocation of improperly registered trademarks, aiming at revocation of registered trademarks prohibited by the Trademark Law and cracking down on improper registration in violation of the principle of good faith.
2, whether it belongs to the improper registration of trademarks
2.1 The following circumstances are deemed to be improper registration of trademarks:
(1) A mark that is not to be used as a trademark as provided for in Article 10 of the Trademark Law;
(2) A contested trademark that belongs to the first paragraph of Article 11 of the Trademark Law shall not be used as a sign of trademark registration;
(3) The contested trademark belongs to Article 12 of the Trademark Law and shall not be used as a three-dimensional mark for trademark registration;
(4) The registration of the contested mark was obtained by the trademark applicant by fraudulent means or other improper means.
2.2 (1) To determine whether the contested trademark is a mark that cannot be used as a trademark as provided for in Article 10 of the Trademark Law, one of the Trademark Examination Standards - "Examination of the mark that cannot be used as a trademark" is applicable;
(2) To determine whether the contested trademark belongs to the Trademark Law Article 11, paragraph 1, shall not be used as a sign of trademark registration, apply the Trademark Examination Standards bis - "Examination of the distinctive features of trademarks";
(3) To determine whether the contested trademark belongs to Article 12 of the Trademark Law and shall not be used as a three-dimensional sign for trademark registration, the Trademark Examination Standard IV - "Examination of three-dimensional trademarks" shall be applied;
(4) To determine whether the registration of the contested trademark was obtained by deception or other improper means, the Criteria for the Trial of Trademark Registration obtained by deception or other improper means shall apply.
The second part is the trial of cancellation cases due to trademark use and related acts
Article 44 Any person who uses a registered trademark and commits any of the following acts shall be ordered by the Trademark Office to correct the time limit or cancel the registered trademark:
(1) changing a registered trademark on its own initiative;
(2) changing the name, address or other registration matters of the registrant of a registered trademark on its own initiative;
(3) transferring a registered trademark on its own initiative;
(4) It has been discontinued for three consecutive years.
Article 39 Where any of the acts listed in items (1), (2) or (3) of Article 44 of the Trademark Law is committed, the administrative department for industry and commerce shall order the trademark registrant to make corrections within a time limit; If it refuses to make corrections, it shall report to the Trademark Office for cancellation of its registered trademark.
Any person who has committed an act in item (4) of Article 44 of the Trademark Law may apply to the Trademark Office for the cancellation of the registered trademark and explain the relevant circumstances. The Trademark Office shall notify the trademark registrant to submit, within two months from the date of receipt of the notice, the evidentiary materials for the use of the trademark before the application for cancellation is filed or the justification for the non-use; Where the evidentiary materials for use are not provided at the expiration of the time limit or the evidentiary materials are invalid without justifiable reasons, the Trademark Office shall cancel its registered trademark.
The evidentiary materials used in the preceding paragraph include the evidentiary materials of the trademark registrant's use of the registered trademark and the evidentiary materials of the trademark registrant's permission to others to use the registered trademark.
Article 49 (1) Any party dissatisfied with the decision of the Trademark Office to revoke a registered trademark may, within 15 days from the date of receipt of the notification, apply to the Trademark Review and Adjudication Board for a review, and the Trademark Review and Adjudication Board shall make a decision... .
1. Introduction
The trademark registrant shall have the statutory obligation to use the registered trademark in a standardized and continuous manner. The Trademark Law prohibits any act of voluntarily changing a registered trademark, changing the name, address or other registered matters of the registrant of a registered trademark, or transferring a registered trademark.
2, whether there is a decision to change the registered trademark situation
Alteration of a registered trademark by itself means that the trademark registrant or licensee, when actually using the registered trademark, arbitrarily changes the words, graphics, letters, numbers, three-dimensional shape, color combination, etc., resulting in changes in the main parts and distinctive features of the original registered trademark. Compared with the original registered trademark, the changed mark is easily considered not to have the same identity.
Where any of the above acts is committed and the trademark registrant is ordered by the administrative department for industry and commerce to make corrections within a time limit, but refuses to make corrections, it shall be revoked according to law.
3, whether there is a decision to change the name of the registered trademark registrant, address or other registration matters
3.1 The name of the registrant who changes a registered trademark on his own means that after the name (name or name) of the trademark registrant has changed, he has not filed an application for change with the Trademark Office in accordance with the law, or the name of the registrant who actually uses the registered trademark is inconsistent with the name of the registrant recorded in the Trademark Register.
3.2 Changing the address of the registrant of a registered trademark on its own means that after the address of the trademark registrant has changed, no application for change has been filed with the Trademark Office in accordance with the law, or the actual address of the trademark registrant is inconsistent with the address recorded in the Trademark Register.
3.3 Other registered matters that change a registered trademark on their own means that the registrant has not filed an application for change with the Trademark Office according to law after the change of other registered matters except the name and address of the trademark registrant, resulting in inconsistency with the relevant matters registered in the Trademark Register.
Where any of the above acts exists and the trademark registrant is ordered by the administrative department for industry and commerce to make corrections within a time limit, but refuses to make corrections, it shall be revoked according to law.
4, whether there is a judgment of the transfer of registered trademarks
The transfer of a registered trademark on its own means that the trademark registrant transfers the right to exclusive use of the registered trademark to the assignee, but the two parties do not jointly apply to the Trademark Office and go through the transfer procedures according to law.
Where any of the above acts is committed and the trademark registrant is ordered by the administrative department for industry and commerce to make corrections within a time limit, but refuses to make corrections, it shall be revoked according to law.
5, whether there is a decision to stop using the registered trademark for three consecutive years
5.1 Ceasing to use a registered trademark for three consecutive years means that a registered trademark ceases to be used within its validity period, and the act continues uninterrupted for more than three years.
5.2 The time for ceasing the use of a registered trademark for three consecutive years shall be calculated three years from the date on which the applicant applies to the Trademark Office for cancellation of the registered trademark.
5.3 Judgment of trademark use
5.3.1 The use of trademarks refers to the commercial use of trademarks. This includes the use of the trademark on goods, packaging or containers of goods, and instruments for the transaction of goods, or the use of the trademark in advertising, exhibitions and other commercial activities.
5.3.2 The specific forms of trademark use on the specified goods are as follows:
(1) Attaching the trademark to commodities, packaging, containers, labels, etc., by means of direct attachment, engraving, branding or weaving, or using it on additional labels, product manuals, introduction manuals, price lists, etc.;
(2) The trademark is used in the transaction documents related to the sale of commodities, including the use of commodity sales contracts, invoices, bills, receipts, commodity import and export inspection and quarantine certificates, customs declarations, etc.;
(3) The trademark is used in radio, television or other media, or published in publicly issued publications, and advertising is carried out by billboards, postal advertisements or other advertising means as a trademark or for the goods using the trademark;
(4) the use of the trademark at an exhibition or exposition, including printed materials and other materials provided at an exhibition or exposition using the trademark;
(5) Other forms of trademark use in accordance with the law.
5.3.3 The specific forms of trademark use in the specified services are as follows:
(1) The trademark is used directly on the service site, including the use of service brochures, service site signs, store decorations, staff clothing, posters, menus, price lists, lottery tickets, office stationery, stationery and other supplies related to the designated service;
(2) The trademark is used on documents related to the service, such as invoices, money orders, service agreements, maintenance certificates, etc.;
(3) The trademark is used in radio, television or other media, or published in publicly issued publications, and advertising for the trademark or services using the trademark by billboards, postal advertisements or other means of advertising;
(4) the use of the trademark at an exhibition or exposition, including printed materials and other materials provided at an exhibition or exposition using the trademark;
(5) Other forms of trademark use in accordance with the law.
5.3.4 The publication of trademark registration information or the declaration of the trademark registrant about the exclusive right to use its registered trademark shall not be regarded as the use of the trademark in the meaning of the trademark law.
5.3.5 The burden of proof that the contested trademark has not ceased to be used for three consecutive years is on the registrant of the contested trademark.
The evidentiary materials used to prove that the contested trademark does not exist in the circumstances of ceasing to use for three consecutive years shall meet the following requirements:
(1) can show the use of the contested trademark logo;
(2) can show that the contested mark is used on the goods/services specified for use;
(3) The user who can show that the trademark is contested includes both the trademark registrant himself and others authorized by the trademark registrant. If the license is granted to others, it shall be able to prove the existence of the license;
(4) be able to show the date of use of the contested mark, and should be calculated three years forward from the date of withdrawal of the application;
(5) can prove the use of the contested trademark in the territory covered by the Trademark Law;
(6) It can be proved that the contested trademark is used openly, truthfully and lawfully in commercial activities.
5.3.6 Where a trademark registrant or licensee uses a registered trademark in respect of a commodity designated for use, the registration in respect of a commodity similar to that commodity may be maintained.
5.4 The following circumstances shall be deemed as valid reasons for the non-use of a registered trademark:
(1) Force majeure;
(2) Discontinued due to government policy restrictions;
(3) Discontinued due to bankruptcy liquidation;
(5) Other legitimate causes not attributable to the trademark registrant.
The third part is the trial of cancellation cases due to quality problems of commodities
Article 45 of the Trademark Law, where a registered trademark is used and the goods thereof are shoddy, shoddy, or deceiving consumers, The trademark Office shall revoke its registered trademark.
Article 49 (1) Any party dissatisfied with the decision of the Trademark Office to revoke a registered trademark may, within 15 days from the date of receipt of the notification, apply to the Trademark Review and Adjudication Board for a review, and the Trademark Review and Adjudication Board shall make a decision... .
1. Introduction
It is one of the legislative purposes of trademark Law to promote the production and business operators to ensure the quality of goods and protect the interests of consumers through trademark management. The trademark registrant shall have the obligation to ensure the quality of the goods on which the registered trademark is used.
2, whether there is the use of registered trademarks of goods shoddy, shoddy, deceiving consumers
Whether there is shoddy manufacturing, shoddy goods, deceiving consumers, shall be proved by the quality inspection report, the administrative decision of the competent administrative organ or the facts determined by the judicial organ and the evidence on which they are based.
7. Standards for handling similar goods or services
1. Introduction
The purpose of the Nice Agreement on the International Classification of Goods and Services for the Registration of Marks is to establish a common system of international classification of goods and services for the registration of marks and to ensure its implementation. In accordance with the Agreement, the World Intellectual Property Organization developed the International Classification of Goods and Services for the Registration of Trademarks, which is now adopted by most countries in the world.
The adoption of the International Classification of Goods and Services for Trademark Registration is conducive to the unification of the classification paths of goods and services in the processing of trademark registration in various countries, and meets the needs of international trade and international exchanges in trademark work; For the trademark authorities of various countries, it can save the time of examining the registration application, reduce the workload, and easy to establish a scientific trademark file system; For the trademark registration applicant, it can simplify and facilitate the preparation work before the application.
The "Similar Goods and Services Classification Table" is based on the "International Classification Table of Goods and Services for Trademark Registration" and summarizes years of practical experience in the classification of similar goods or services.
The appropriateness of the judgment of similar goods or services is directly related to the acquisition and exercise of the exclusive right of trademark, the security of economic transactions, and the maintenance of fair competition market economic order. The Trademark Office and the Trademark Review and Adjudication Board shall refer to the Classification Table of Similar Goods and Services when trying cases. However, due to the continuous update and development of goods and services, the situation of market transactions is constantly changing, and the judgment of similar goods or services will also change, and even have the particularity of the case, so the process of hearing the case will still involve the specific review and judgment of similar goods or services.
In the trial of trademark rejection review, objection review, objection review, dispute, revocation, revocation review case, involving the determination of whether goods or services are similar, the principle of this standard for individual judgment.
2. Judgment of similar goods
2.1 Similar commodities refer to the same or similar commodities in terms of functions, uses, main raw materials, production departments, sales channels, sales venues, consumption objects, etc.
2.2 The following factors shall be comprehensively considered in the determination of similar commodities:
(1) Function and use of the product
If the functions and uses of the two goods are the same or similar, and can meet the same needs of consumers, it is more likely to be judged as similar goods.
If the two commodities are complementary in function and use or need to be used together to meet the needs of consumers, it is more likely to be judged as similar commodities.
(2) Raw materials and ingredients of the goods
The raw materials or ingredients of a commodity are important factors that determine the function and use of a commodity. Under normal circumstances, the raw materials or ingredients of the two commodities are the same or similar, and the possibility of being judged as similar commodities is greater.
However, with the upgrading of commodities, even if the raw materials or components of the commodities are different, and the raw materials or components of the commodities are fungible, and do not affect the function and use of the commodities, there is still the possibility of being judged as similar commodities.
(3) Sales channels and places of goods
If the sales channels and sales venues of the two commodities are the same or similar, the opportunity for consumers to contact them at the same time is greater, and it is easy for consumers to link the two, it is more likely to be judged as similar goods.
(4) Goods and parts
Many goods are composed of individual parts, but it cannot be assumed that the goods and the parts or the parts are similar goods, but should still be judged according to the consumer's general perception of the closeness of the connection between the two.
If the purpose of a specific part is to cooperate with the function of a specific commodity, and the commodity lacks the specific part, it cannot achieve its function or seriously impair its economic purpose of use, then it is more likely to be judged as a similar commodity.
(5) Producers and consumers of commodities
The greater the likelihood that two goods are produced, manufactured, or processed by producers in the same industry or field, the greater the likelihood that they will be judged as similar goods.
If two kinds of goods are engaged in the same industry as the consumer group, or their consumer groups have common characteristics, it is more likely to be judged as similar goods.
(6) Consumption habits
The determination of similar goods should also take into account the consumption habits formed by Chinese consumers in a specific social and cultural context. If consumers habitually substitute two goods for each other, the two goods are more likely to be judged as similar goods.
(7) Other relevant factors affecting the judgment of similar goods
3. Determination of similar services
3.1 Similar services refer to the same or similar services in terms of purpose, content, mode, object, etc.
3.2 The determination of similar services shall take into account the following factors:
(1) The purpose of the service
Two services have the same or similar purpose, may replace each other, can meet the same or similar needs of the general service recipient, is determined to be a similar service is more likely.
(2) The content of the service
The more similar the content of the services provided, the more likely it is to be judged as similar.
(3) Service mode and service place
If the service method or service place is the same, the general service recipient has a greater chance of contacting at the same time, then it is more likely to be judged as similar services.
(4) The scope of service objects
If the recipients of the services come from the same or similar consumer groups, it is more likely to be judged as similar services.
(5) Service providers
If the service providers are from the same industry or field, they are more likely to be identified as similar services.
(6) Other relevant factors affecting the determination of similar services
4. Determination of whether goods and services are similar
4.1 Goods and services are similar, meaning that there is a specific connection between the goods and services, which is easy to confuse the relevant public.
4.2 To determine whether goods and services are similar, the following factors should be taken into account:
The closeness of the connection between goods and services, the consistency in terms of use, users, general utility, sales channels, sales habits, etc.
(8) Criteria for the trial of signs with distinctive characteristics obtained through use
Article 11 The following marks shall not be registered as trademarks:
(1) having only the generic name, pattern or model of the commodity;
(2) directly expressing the quality, main raw materials, functions, uses, weight, quantity or other characteristics of the commodity;
(3) lack of distinctive features.
The marks listed in the preceding paragraph may be registered as trademarks if they have acquired distinctive features through use and are easy to identify.
(1) If the mark referred to in Article 11, paragraph 1, of the Trademark Law has been used to form a specific market meaning and become a sign for the relevant public to identify the goods/services provided by the user, it shall be determined that it can be registered as a trademark in accordance with the provisions of Article 11, paragraph 2, of the Trademark Law.
Example 1: Toothpaste Example 2: shoe polish
(2) In accordance with the provisions of Article 11, paragraph 2, of the Trademark Law, the following factors shall be taken into account when examining the use of marks with distinctive characteristics:
(1) the awareness of the relevant public of the logo;
(2) the actual use of the mark on the specified goods/services, the way of use and the use of the same industry;
(3) the production, sales and advertising of the goods/services using the mark and the characteristics of the goods/services using the mark themselves;
(4) Other factors that make the mark distinctive.
(3) If the parties claim that the mark has been used to obtain significant features, they shall submit corresponding evidentiary materials to prove it. To determine whether the mark is a sign with distinctive features obtained through use, it should be recognized by the relevant Chinese public as a sign indicating the designated use of goods/services, and thus distinguished from other goods/services.
4,the use in this standard refers to the use in China.
The evidentiary materials used to prove the use of the mark should be able to show the trademark mark used, the goods/services, the date of use and the person who used the mark.
5, the application for registration after the use of a marked feature, should be basically consistent with the actual use of the mark, shall not change the marked features.
6, to determine whether a sign is a sign that has been used to obtain significance, it should be based on the state of facts at the time of trial.
