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How much do you know about trademark use pitfalls?

Release Time：

2023-05-07

Trademark is the intangible assets of an enterprise rather than the tangible assets. Trademark is not only a sign to distinguish the source of goods or services, but also the support of enterprise construction and brand development. But trademark is a legal concept, refers to the production and business activities used to identify the source of goods or services of the mark. There are various problems in the actual implementation of the trademark. Due to the lack of relevant legal knowledge and the lack of trademark knowledge, individuals and enterprises fall into some misunderstandings in the process of trademark use.

Misunderstanding 1: Marks ® and TM can be used as long as a trademark application is made

R is the first letter of a registered English register. TM is the acronym of an English trademark. "TM" indicates that the mark is used as a trademark, while "®" indicates that the mark is already a registered trademark and enjoys the exclusive right to use the trademark.

However, there is no regulation on the use and management of TM, as long as the operator wants to inform others that a mark is a mark used as a trademark, regardless of whether the mark is applied for trademark registration, you can use "TM". Misuse of ® may result in industrial and commercial penalties if the registration pattern is changed or the product is not covered.

Misunderstanding 2: Someone else has already applied for the trademark, you can't apply for it yourself

China adopts the "Similar goods and services classification Table" (based on the Nice classification), a total of 45 categories, if others have registered a trademark in some categories, then you can not apply for the same or similar goods or services, but you can apply for other categories (except well-known trademarks).

Misunderstanding 3, their own registered trademarks, the use of what products on their own say

"The exclusive right to use a registered trademark shall be limited to the trademark whose registration has been approved and to the goods whose use has been approved." Registering a trademark does not guarantee protection for all goods or services. The trademark can only be used in the registered category of products or services, can not arbitrarily use the trademark in the unregistered category, can not be used as a registered trademark. In doing so, the trademark is not protected and there may be infringement.

Misunderstanding 4, as long as the registered trademark automatically enjoy the ownership of the domain name

Trademark is a trademark, domain name is a domain name, registered trademark does not automatically have the ownership of the domain name, if the other party's domain name application is malicious behavior, you can apply for domain name arbitration. If you have a prior trademark public use or even very well-known, can deduce that the other party heard the trademark before registering the domain name; The valid reason why the other party has not registered the domain name; The purpose of the other party's registration is to transfer, etc., can be used as evidence of domain name arbitration!

Misunderstanding 5, as long as enterprises have trademarks, there is no need to consider trademark registration

According to the Trademark Law, a class of products, one trademark, one application. Enterprises produce more categories of products, can use the same trademark, but in the registration application procedures to apply for multiple categories. Now there are some visionary entrepreneurs will directly choose the full class registration when applying for trademarks, which is also a good way to protect trademarks.

Misunderstanding 6, get the trademark registration certificate this trademark will always be mine

Obtaining a trademark certificate does not mean that you will always enjoy the exclusive right to use the trademark. Where a registered trademark is not used for three consecutive years without justifiable reasons, any entity or individual may apply to the Trademark Office to cancel the registered trademark. The right to exclusive use of the trademark will be lost if the trademark is not renewed after 10 years. After the trademark right is lost, it is no longer protected by law. Anyone can apply for the trademark registration.

Misunderstanding 7, who want to use their trademark can, do not have to do what procedures

Where another party is authorized to use its registered trademark, the licensor shall, within the term of validity of the license contract, file a record with the Trademark Office and submit the materials for filing. The filing materials shall state the licensor, licensee, license term, and scope of goods or services licensed to use the registered trademark. Article 43 of the Trademark Law stipulates that a trademark registrant may authorize others to use its registered trademark by signing a trademark license contract. The licensor shall supervise the quality of the goods on which the licensee uses its registered trademark. The licensee shall guarantee the quality of the goods on which the registered trademark is used.

Misunderstanding 8, enterprise name, address change, there is no need to go through trademark change procedures

Where the name and address of a trademark registrant is changed, the formalities for the change of the trademark must be handled in a timely manner. Otherwise, the new name, new address with the original trademark, not only is not protected by law, once there is a trademark dispute, rational become unreasonable.

Misunderstanding 9, the trademark registered by the enterprise has been used for many years, has a certain reputation near and far, and the pattern is not ideal and can not be changed

In fact, enterprises can use the original trademark name, but if you want to choose other graphics, you can go through the registration application procedures.

Misunderstanding 10, trademarks must be registered, not registered can not be used

Trademark registration is the exclusive right to use the trademark rather than the right to use the trademark! According to the provisions of China's Trademark Law and the Implementation Rules of the Trademark Law, the scope of compulsory trademark registration in China mainly refers to two categories of goods: one is human drugs, and the other is tobacco products. These two types of trademarks may not be sold on the market without approval. Other trademarks may or may not be registered, depending on the individual's wishes. However, unregistered trademarks do not enjoy exclusive rights, and China's trademark registration is the principle of application first, if you do not register a trademark, once it is registered by others, you can no longer use this trademark.

Misunderstanding 11, color trademarks need to specify the color when applying

If the color is specified, the registered color will be used in the future when the registered trademark is used, and the color cannot be changed. Black and white applications, do not specify the color of the wider range of protection.

Misunderstanding 12, the purchase of the trademark is declared invalid must be able to obtain the original trademark registrant compensation

If the original trademark registrant does not have bad faith in causing losses to others, it cannot claim compensation. The invalidation of a registered trademark shall be deemed to have never existed in law. However, trademark assignment contracts and trademark licensing contracts have been performed; Judgments, rulings and conciliation documents of trademark infringement cases made and executed by the people's courts; The decision on the handling of trademark infringement cases made and implemented by the administrative department for industry and commerce shall not have retrospective effect, unless the trademark registrant has bad faith and has caused losses to others.

From the national law, registered trademarks can protect their own trademarks from infringement, not to be used by others, can maintain the credibility and image of goods. In addition, the registered trademark can not only enhance the sense of consumer identity, but also enhance the enterprise's own belief in maintaining brand value, enhance brand image, and expand the market in the international market.

Because trademarks can be trusted and trusted by so many consumers, it is especially important for companies to have a trademark that is exclusive to them. However, in the use of trademark registration, there are also a lot of pitfalls, in order to avoid the risk of trademark complaints or trademark registration, enterprises should know early to prevent early to avoid! Source: Times Chinese Business

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