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With the development of society, trademark infringement complaints and reports are increasing day by day. On the one hand, this reflects the increasing awareness of enterprises to protect their rights, but it also shows that a large number of legitimate trademark rights and interests in society are being infringed by more and more offenders.

So what kind of behavior will be assessed as trademark infringement, and what are the key and difficult points of trademark infringement determination? For the convenience of research, trademark infringement is often divided into several main types in theory.

(1) Counterfeit trademarks

Counterfeiting trademark is a serious infringement, which is extremely destructive. It not only embezzls the reputation of others' trademark to obtain improper commercial interests, but also destroys the reputation of others' trademark and deceives consumers because of shoddy products. Counterfeit trademarks usually include the following:

First, the act of using the same trademark on the same goods or services. The act of using a trademark identical to its registered trademark on the same goods or services without the permission of the trademark owner.

Second, the act of using the same trademark on similar goods or services. The act of using a trademark identical to its registered trademark on similar goods or services without the permission of the trademark owner. Although the scope of protection of trademark right is limited to the approved use of goods, if the same trademark is used on similar goods or services, it will also lead to consumers' confusion about the source of the goods, and will also cause damage to the interests of the trademark owner.

Third, the act of using similar trademarks for the same goods or services. Use of a trademark similar to its registered trademark on the same goods or services without the permission of the trademark owner. Such use is also generally based on consumer misperception as a criterion for judging whether it constitutes infringement.

Fourth, the use of similar trademarks for similar goods or services. Without the permission of the trademark owner, the use of a trademark similar to its registered trademark on similar goods or services is sufficient to cause misidentification by consumers. Therefore, before registering a trademark, it is recommended that the trademark applicant conduct trademark inquiries first, so as not to infringe on the prior trademark rights of others.

The trademark law is concerned with the use of registered trademarks. No one can use the same or similar trademark on the same or similar goods or services without the permission of the trademark owner. Otherwise, it will constitute infringement of trademark rights. Only when the right to the trademark is exhausted, the third party may use the registered trademark. The act of counterfeiting the registered trademark directly infringes the prohibition right of the trademark owner, which is a typical direct infringement of the trademark right.

(2) Confusion and similarity (or approximation)

Confusion and similar issues cannot be treated mechanically. Generally speaking, trademarks used on the same or similar goods that are identical or similar to the registered trademarks of others should be carried out in accordance with the following principles: first, the general attention of the relevant public is the standard; Second, it is necessary to compare both the whole trademark and the main part of the trademark, and the comparison should be carried out separately in the state of isolation of the objects of comparison; Third, the claim to protect the distinctiveness and popularity of the registered trademark should be considered.

The determination of whether goods or services are similar shall be based on the general understanding of the relevant public of the goods or services. The International Classification of Goods and Services for Trademark Registration and the Classification of Similar Goods and Services can be used as a reference to determine similar goods or services. The judgment that trademarks are identical, similar, or similar in service as stipulated in the Trademark Law of 2001 involves the determination of trademark infringement, which is clearly explained in the Supreme People's Court's Interpretation on Several Issues concerning the Application of Law in the Trial of Trademark Civil Dispute Cases in 2002.

In some cases, the same or similar words with the registered trademark of others are used as the enterprise's shop name on the same or similar goods with others, causing the relevant public to misrecognize and infringe on the exclusive right to use the registered trademark of others. According to the judicial interpretation of the Supreme People's Court, it should be confirmed that such acts constitute infringement. In accordance with the provisions of Article 49 of China's 2002 Trademark Law Implementation Regulations, it should be confirmed that it does not constitute infringement.

(3) Confusion behavior

The act of confusion refers to the use of the same or similar words or graphics with another person's registered trademark as the name of the commodity or the decoration of the commodity, and is sufficient to cause misidentification. This kind of behavior is different from the first type of infringement of trademark rights, the way of behavior is changed from "use as a trademark" to "use as a trade name or product decoration", and its purpose is to use the reputation of others registered trademarks to engage in unfair competition. Both the name of the product and the decoration of the product are the signs of the trademark, which appear together with the trademark on the product or its packaging, and together constitute a kind of appearance of the product. This is on the same or similar goods, the same or similar words and graphics with others registered trademarks as the name of the product or product decoration to use, enough to cause consumer misidentification. The so-called enough to cause misrecognition means that it will cause the relevant consumers to obtain a wrong understanding of the source of the goods and the relationship between the actor and the registered trademark owner, thus damaging the reputation of the trademark owner. At the same time, this kind of behavior will also dilute the impact of the trademark owner's trademark, so that the registered trademark may evolve into the common name of the commodity. It is for this reason that some countries even stipulate that registered trademarks may not be used non-commercially in works such as dictionaries or encyclopedias, in order to prevent the danger of registered trademarks becoming generic names of goods.

(4) Infringement of trademark logo

Trademark infringement refers to the act of manufacturing the trademark of another person's registered trademark without authorization or selling the trademark without authorization. A trademark logo is the physical entity of a trademark. It comes in many forms, such as trademark webbing on clothing, trademark nameplates on televisions, and so on. In accordance with the requirements of the "Measures for the Administration of Trademark Printing" amended and published by the State Administration for Industry and Commerce on August 19, 2004, the designated trademark printing unit shall print the trademark logo entrusted by the trademark printing client in accordance with law. Although this kind of behavior is not the use of the trademark itself, it has a direct relationship with the illegal use of the trademark. It is often the condition for the first type of behavior above to occur. Therefore, the unauthorized manufacture or sale of another person's registered trademark logo constitutes an infringement of the trademark right of the trademark owner. In particular, the necessary preparation stage of counterfeit trademarks is no less harmful than other trademark infringements. China's trademark law not only regards this act as an infringement, but also, if the circumstances are serious, it can also be investigated for criminal responsibility according to the crime of counterfeiting trademarks.

(1) Distribution of infringing products

The sale of goods that infringe others' registered trademark rights belongs to a kind of infringement in the circulation of commodities. The dealer is the intermediary between the producer and the consumer, and has the obligation to provide the consumer with genuine goods. If the distributor provides consumers with goods that infringe the exclusive right of others to use a registered trademark, it will damage the interests of the registered trademark owner and consumers. Therefore, prohibiting and sanctioning the sale of infringing goods sets up a legal barrier for trademark infringement from the circulation link.

(2) Knowingly providing conditions for counterfeit trademarks

Intentionally to provide warehousing, transportation, mailing, hiding and other convenient conditions for the infringement of the exclusive right to use a registered trademark means that the infringing products need to have warehousing, transportation, mailing, hiding and other necessary steps before being sold. The perpetrator of this kind of act is not directly using the trademark, but the act has caused the consequences of infringing the rights of the trademark owner.

Once the trademark is infringed, then the evidence is very important for a long time, just like a person broke the law, how to explain this person broke the law, this is the need for evidence, in front of the law, what all need evidence, for trademark infringement is also the same, the following Xiaojie for you to introduce the trademark infringement after how to obtain evidence several legal ways:

1. Entrust an agency to investigate and collect evidence

Trademark rights cases are more professional, if the right holder's own evidence is still difficult, especially for people who are not familiar with the rights, it is even more difficult, this time you need professional people to do professional things, entrusted agencies to collect evidence is a good way, these people handle more cases, not only have rich legal knowledge, And has a wealth of experience in handling cases and skilled litigation skills. Generally speaking, the professional agent is more convenient and effective than the parties in the investigation and collection of evidence, and the scope of the collection of evidence is more extensive and accurate, and often has high credibility in judicial practice.

2. Apply to notarial organs for evidence preservation

One of the legal business of notarial organs is "preserving evidence". Notarial evidence has the effect of presuming to be true, which is generally accepted directly by the court, unless there is contrary evidence sufficient to overturn the notarial proof. The effect of the preservation of evidence by the notary organ is basically equal to that of the court according to its functions and powers. Before the lawsuit, the parties can make full use of notarial organs to collect and preserve evidence, which is also an effective measure to prepare for the lawsuit.

3. Apply to the court for pre-litigation evidence preservation

According to the Interpretation on the Applicable Law of Stopping the infringement of the Exclusive right to use a Registered Trademark before litigation and the preservation of Evidence, it is stipulated that in trademark right infringement cases, pre-litigation evidence preservation can be applied. After the preservation measures, the parties or interested parties shall initiate proceedings within a legal time limit. If no action is brought before the court, the measure of protection shall be rescind or the relevant evidence shall be destroyed or returned, and the applicant shall be liable for the loss thus caused.

4. Apply to the people's Court for evidence

The people's court shall investigate and collect evidence if it is unable to obtain evidence on its own due to objective reasons, or after it has exhausted the means of investigation of key evidence sufficient to affect the case, or the evidence that the people's court considers necessary for the trial of the case. This situation is generally divided into three categories: 1, the preservation of the accused infringing products; 2. Investigate the financial books of the alleged infringement unit in order to determine the amount of compensation; 3. Obtain the evidence of infringement of the alleged infringer.

The parties applying for court investigation and evidence collection also need to pay attention to two aspects: first, the scope of evidence applied for investigation needs to meet the legal situation; Second, this application also needs to pay special attention to the time limit for proof.

Under normal circumstances, the measures taken by the court are to take photos of the alleged infringing products, or record the technical characteristics of the alleged infringing products, and seize and extract the books and trademarks that are easy to access, while the financial accounts of the alleged infringer are generally extremely difficult due to the obstruction or hiding of the infringer.

5. Report to administrative authorities for evidence collection

The parties may also report to the industrial and commercial and public security departments where the infringement is located, and the above departments may consult and copy the contracts, account books and other relevant documents related to the case, question the parties and witnesses, and carry out on-site law enforcement inspections by taking photos and videography. Where the exclusive right to use a trademark is suspected to be infringed, the above administrative law enforcement departments may check the number and specifications of the products suspected of infringement and seal them up and take samples from them.

The problem of trademark infringement has been troubling all major trademark owners. With the improvement of legal attention to trademarks, law enforcement agencies at all levels have become more and more strong in the protection of intellectual property rights, and the corresponding treatment of trademark infringement has become more mature.

Warm reminder

Intellectual property rights are very important for enterprises. Intellectual property rights can promote corporate brands, protect the core secrets of the company from infringement, and encourage employees to innovate, reduce product costs, increase corporate profits, prevent the theft of research and development results, help enterprises to finance loans, so that enterprises can occupy the highest point in the fierce competition. So that enterprises in the complex economic environment in an invincible position.

In the future, intangible assets created by intellectual property will become the key to the survival of enterprises. (Trademark Knowledge Circle)

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