Question and answer of the key questions in the Guide to Trademark Examination and Adjudication - The examination and adjudication of trademarks shall not be used as trademarks-Q&A.-Shenzhen deep trust patent Agency Co., LTD

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Question and answer of the key questions in the Guide to Trademark Examination and Adjudication - The examination and adjudication of trademarks shall not be used as trademarks

Release Time：

2022-02-08

In order to facilitate the public and trademark practitioners to better understand the Guide to Trademark Examination and Adjudication (hereinafter referred to as the Guide) and respond to social concerns, the Trademark Office of the State Intellectual Property Office has sorted out questions and answers on some key issues in the formulation of the Guide.

The third chapter of the second part of the Guide is "examination and trial not to be used as a trademark mark", which inherits the corresponding chapters of the "Trademark Examination and Trial Standards" (formulated and released in 2005, the first revision in 2016, hereinafter referred to as the 2016 "Standards") and reorganizes the style, and has carried out a large range of enrichment and improvement of the content. In the process of formulating the Guide, this chapter has received great attention, and the relevant issues are interpreted as follows:

1. Q: What are the features of the revised section of the Guide on "examination and trial of non-trademark marks"?

A: The revision of this chapter of the Guide has the following characteristics:

First, adhere to the correct political orientation. "Examination and trial that shall not be used as a trademark sign" has distinct political attributes and ideological characteristics.

The second is to fully absorb and learn from the latest achievements in the theory and practice of trademark authorization confirmation. For example, in the judgment of the "same or similar" with the country name referred to in Article 10, paragraph 1 (1) of the Trademark Law, the Guide absorbs the provisions of the Supreme People's Court on Several Issues concerning the Trial of Trademark Authorization and Confirmation Administrative Cases (Interpretation [2017] No. 2), and clearly states that "it is the same or similar to the country name of the People's Republic of China." It means that the logo as a whole is identical or similar to the name of the country, etc." "For a mark containing the national name of the People's Republic of China, but not identical or similar on the whole, if the mark is registered as a trademark that may damage national dignity, it can be determined to fall under the circumstances provided for in Article 10, paragraph 1 (8) of the Trademark Law", and the rest such as "deceptive" and "other adverse effects of the identification", It has also absorbed the relevant provisions of the above judicial interpretation.

The third is to adhere to the unity of safeguarding national interests, social public interests and citizens' legitimate rights and interests, and to sum up the practical experience of combating trademark registration behaviors that endanger China's national interests, social public interests and public order. On the basis of practice, the boundary between Article 10, paragraph 1 (7) and (8) of the Trademark Law is further divided. In principle, the registration behavior that infringes on the private rights of well-known figures, well-known institutions, and important events and exhibitions shall be regulated by paragraph 1 (7) of Article 10, and the registration behavior that is harmful to socialist morality, social public interests and public order shall be regulated by paragraph 1 (8) of Article 10; It is clear that "other adverse effects" including the sign itself, although not derogatory meaning, but registered by the applicant to use, easy to have a negative and negative impact on China's political, economic, cultural, religious, ethnic and other social public interests and public order.

2. Q: What are the changes in the understanding and application of Article 10, Paragraph 1 (7) of the Trademark Law in this chapter?

A: The changes in the Guide's understanding and application of this item are mainly reflected in three aspects:

The first is to emphasize that the judgment of "deceptive" is based on the general public's cognition;

The second is to further emphasize the concept of "misidentification of sources" and elaborate the misidentification of service marks;

The third is to enrich the specific circumstances of application, and in practice, "the names and portraits of public figures are the same or similar, which is easy to lead to public misidentification" and "the names and logos of educational institutions, sports organizations, environmental protection organizations, charity organizations and other institutions with a certain degree of popularity are the same or similar, without the permission of the institution." Easy to cause the public to misidentify the source of goods or services "" with important events, important exhibitions, major archaeological discovery name (including standard abbreviation), logo, etc. the same or similar, without the authorization of the organizer or competent unit, easy to lead to public misidentification" and other circumstances are included.

3. Q: How does this chapter change the understanding and application of "other adverse effects" in Article 10, paragraph 1 (8) of the Trademark Law?

A: The Guide starts from the new stage of China's political, economic and social development, adheres to the correct political orientation, and is committed to effectively safeguarding national interests, social public interests and public order in the trademark examination and trial work.

First, according to the development of practice, it has enriched the situation with political adverse effects.

Article 11 of the National Security Law, promulgated on July 1, 2015, stipulates that citizens of the People's Republic of China, all state organs and armed forces, all political parties and people's organizations, enterprises, institutions and other social organizations have the responsibility and obligation to safeguard national security. China's sovereignty and territorial integrity brook no violation or division. Safeguarding national sovereignty, unity and territorial integrity is the common obligation of all Chinese people, including our compatriots in Hong Kong, Macao and Taiwan. Combined with practice, the Guide further clarifies that any symbol that endangers national security and undermines national unity is a symbol that has "adverse effects" and is prohibited from use.

At the same time, in the part with political adverse effects, summarize the review practice in recent years, and further clarify to the society that the party's important theoretical achievements, scientific conclusions, political discourse, national strategy, national policy, party and state important meetings, etc. the same and similar signs, as well as the signs composed of the name of events and places with political significance are signs with political adverse effects.

The second is to integrate the other adverse impact of the situation into the economy, culture, ethnic, religious, social easy to produce negative, negative impact on the public interest, disrupt public order situation, and add the typical adverse impact of trademark examination and trial practice. Including signs of "the name of the national new area or the national key development area closely related to the overall development strategy of our country (including the standard abbreviation) is the same or similar, harmful to the economic and social public interests of our country", "and the unique words of public emergencies in our country are the same or similar, disturbing public order" and other situations.

4. Q: Why does the Guide list signs that are "the same or similar to the words unique to public emergencies in China and disturb public order" as signs that have "adverse effects" and are prohibited from use?

A: According to Article 3 of the Emergency Response Law, emergencies refer to natural disasters, accidents, public health events and social security events that occur suddenly, cause or may cause serious social harm, and require emergency response measures. In the event of public emergencies such as major epidemics, major accidents and disasters, some applicants maliciously hype and rumor-mongering by applying for registered trademarks, resulting in adverse social impacts and seriously disrupting the order of trademark registration. The Guide therefore adds a new provision to clarify that signs with the same and similar unique words related to public health events such as major epidemics, major natural disasters, major accidents and disasters, and social security events are signs that are prohibited from registration and use because of adverse effects, and should be rejected according to provisions such as Article 10, paragraph 1 (8) of the Trademark Law.

5. Q: The new provisions in the Guide are identical with or similar to the names of well-known educational institutions, sports organizations, major events and exhibitions. Is it an expanded protection of the private rights of these institutions and organizers?

A: No. In the section of "easy to cause the public to misidentify the origin and source of goods or services", the Guide adds the content of "the names and logos of educational institutions, sports organizations, environmental protection organizations, charitable organizations and other institutions with certain popularity are the same or similar, without the permission of the institutions, easy to cause the public to misidentify the source of goods or services". And "with important events, important exhibitions, major archaeological discovery name (including standard abbreviation), logo, etc., the same or similar, without the authorization of the organizer or competent unit, easy to lead to public misidentification" provisions. The above changes are not intended to give special treatment to the relevant institutions or organizers, but from the protection of consumer interests, to prevent misrecognition of mispurchases, and to maintain the market order of fair competition. The above standards must meet strict conditions in the specific application process, including that the relevant name must have a certain degree of visibility or have an important role in a certain range of economic and social development, and that the registration of the pending trademark will not cause the public to misidentify the source of goods or services.

6. Q: Why does the Guide add the criteria for the review and trial of martyrs' name-related signs? Will the signs with the same names of martyrs be rejected?

A: On April 27, 2018, the Second session of the Standing Committee of the 13th National People's Congress adopted the Law on the Protection of Heroes and Martyrs of the People's Republic of China to comprehensively strengthen the protection of heroes and martyrs, safeguard public interests and promote core socialist values. Article 22 of the law stipulates that "it is forbidden to distort, vilify, blaspheme or deny the deeds and spirit of heroes and martyrs." The names, portraits, reputations and honors of heroes and martyrs shall be protected by law. No organization or individual may insult, slander or otherwise infringe upon the names, images, reputations or honors of heroes and martyrs in public places, on the Internet or through radio, television, films or publications. No organization or individual may use the names and portraits of heroes and martyrs or use them in trademarks or commercial advertisements in disguise to harm the reputation and honor of heroes and martyrs." Therefore, in accordance with the above new changes, the Guide summarized and refined the specific standards on the symbols related to the names of martyrs in practice, and added this part of the content.

For the logo with the name of the martyr or containing the name of the martyr is not rejected, should be combined with the components of the logo, the designated goods and services, the applicant's location and the degree of association with the martyr and other factors, a comprehensive judgment of whether the registration and use of the logo may damage the reputation of the martyr, honor or other adverse effects. The exceptions which are not applicable to this standard are also specified.