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How to judge that the trademark applied for registration infringes the copyright of others?
Release Time：
2022-07-09
If the following conditions are met, it shall constitute infringement of the prior copyright of another person:
(1) The trademark is identical with or substantially similar to the work of others.
(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 has not obtained the permission of the copyright owner.
In practice, it is very important and difficult for copyright owners to prove that they have obtained copyright before the registration date of trademark application. Many copyright owners often lose a lawsuit because they cannot prove that they own the copyright in a work. Therefore, copyright owners should keep the evidence that can prove their copyright. Generally, prior copyright can be proved through copyright registration certificate, prior public publication of works such as newspapers, books, CDS, etc., prior creation of the work such as drafts, electronic documents, etc., prior acquisition of copyright through inheritance, transfer and other means to prove copyright. In addition, in the absence of sufficient evidence to the contrary, the Trademark Review and Adjudication Board and the court will generally recognize the fact that the parties previously enjoyed copyright as confirmed in the effective judgment document.
Source: Shenzhen Intellectual Property Protection Center, China
Planning editor | Xiao Li
Reviewed by | Zhaocheng Pan
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