Case 1
The cans and packaging boxes used in the "Six Walnuts" walnut milk product produced by Yangyuan Company are registered trademarks, and the artistic patterns printed on the outer packaging of the product are also designed by Yangyuan Company. Through the promotion of Yangyuan Company, "Six Walnuts" walnut milk products have a high market popularity in the beverage market. 20 12, the "six walnuts" walnut milk product was recognized as a well-known commodity by the industrial and commercial department of Hebei Province and announced. The announcement is accompanied by pictures of packaging and decoration of product packaging boxes and cans. The registered trademark No.5127315 of Yangyuan Company was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on June 5, 20 15.
In a specific case, the following factors should be considered in determining "unauthorized use": (1) Other people's prior trade marks have certain influence; The packaging and decoration of the goods sold are similar to those of well-known goods, which is easy to confuse relevant consumers; This kind of confusion has caused improper influence on the normal operation of well-known commodity operators and destroyed the level playing field.
Watch industry tourism
2018 March 15, a market supervision bureau received a report that a large supermarket sold fake and shoddy "red bull" drinks. After investigation, the supermarket bought drinks marked "Austrian Red Bull Vitamin Functional Beverage Co., Ltd.", "Austrian Raging Bull" and "Bullfighting" for sale. This beverage is similar to Red Bull produced by Red Bull Energy Beverage Co., Ltd., and the appearance similarity between them is very high. RedBull RedBull and its pictures are well-known trademarks, and its classic gold can packaging has obtained a patent for design. The product name, packaging and decoration of red bull beverage have certain influence. In the course of business operation, the parties use the commodity name of "Austrian Red Bull Vitamin Campaign" on the commodity price tag, and the business personnel call it Austrian Red Bull in the process of introducing it to consumers, which constitutes confusion. According to Article 18 of the Anti-Unfair Competition Law, a market supervision bureau ordered the illegal act to stop immediately, confiscated the confused goods of the parties and imposed a fine.
Comment and analysis
Question 1: Can the seller be identified as the illegal subject of confusion as stipulated in Article 6 of the Anti-Unfair Competition Law (New) only by sales behavior?
? Article 6 of the Anti-Unfair Competition Law (New) Operators shall not commit the following confusing acts, which may make people think that they are other people's goods or have a specific connection with others: (1) Unauthorized use of identical or similar marks such as commodity names, packaging and decoration that have certain influence on others; (2) unauthorized use of enterprise name (including abbreviation, font size, etc.). ), social organizations (including abbreviation, etc. ) and name (including pen name, stage name, translated name, etc. ) has a certain influence on others; (three) unauthorized use of domain names, website names, web pages and other major parts. , have a certain influence on others; (four) other confusing acts that can make people mistakenly think that they are other people's goods or have specific connections with others. It is generally believed that the producer's unauthorized use of the same or similar marks such as product name, packaging and decoration that have certain influence on others has been completed when it enters the circulation link, and the seller only passively accepts the packaged products. Therefore, in case one, it is not appropriate to identify the seller's pure sales behavior as unauthorized use. Of course, the anti-unfair competition law uses operators rather than "producers", that is to say, sellers may also be the illegal subjects of this confusion.
Question 2: Can the seller be punished according to the "unauthorized use" behavior of the producer?
Some people think that the product quality law stipulates that producers shall not forge the place of origin, and shall not forge or falsely use other people's names and addresses. Producers shall not forge or falsely use quality marks such as certification marks. Producers shall not adulterate or adulterate their products, and shall not pass off fake products as genuine ones, or pass off unqualified products as qualified products. The same rules apply to sellers. Both producers and sellers (operators) must objectively forge or fraudulently use products. Article 55 of this Law stipulates that a seller who only buys and sells products that are forged or falsely used by others' factory names and addresses may be given a lighter or mitigated punishment if there is sufficient evidence to prove that he does not know the products that are prohibited from being sold in Articles 49 to 53 of this Law and truthfully state the source of the goods. Literally, this article is a lighter or mitigated punishment, but first of all, it can be punished by comparison. Then the question comes, whether the anti-unfair competition law can also refer to the provisions of Article 55 of the Product Quality Law to deal with this problem, such as the provisions on penalties or judicial administrative interpretation for sellers to buy and sell products with the same or similar logo, such as product name, packaging and decoration, which have certain influence on others.
The author believes that the product quality law stipulates the seller's product quality responsibility and obligation in the second section. Article 33 stipulates that the seller shall establish and implement the system of incoming goods inspection and acceptance, and verify the product conformity certificate and other marks. Other marks include other people's factory name, address, certification marks and other quality marks. On the understanding and application of the Product Quality Law, the former AQSIQ replied that the products prohibited from being sold in Articles 49 to 53 of the Product Quality Law are products with serious quality problems, while others are products with general quality problems. It involves the protection of the right to health and life, and this law is aimed at buyers and sellers.
This law sets product quality responsibilities and obligations for buyers and sellers, so as long as buyers and sellers objectively buy products forged or fraudulently used by others, regardless of whether they know it subjectively or not, the law presumes that they bear the same legal responsibility for objectively forging or fraudulently using quality marks. However, if the seller has sufficient evidence to prove that he does not know that the product is prohibited from being sold and truthfully explains the source of its purchase, he may be given a lighter or mitigated punishment. Here, the system design of inverted burden of proof is the discretion standard of administrative punishment by administrative organs, not the basis for identifying illegal facts. Product name, packaging, decoration, trademark right, patent right, manufacturer name, etc. , with a certain influence, belongs to the category of intellectual property rights. The Anti-Unfair Competition Law does not set the responsibilities and obligations of buyers and sellers to check the same or similar marks that have certain influence on others, such as commodity name, packaging and decoration. Therefore, it is unnatural to apply the provisions of the product quality law to buyers and sellers.
If the seller subjectively knows or should know that he is buying a "confusing product" in the sales process, and makes false propaganda or statements, which constitutes a composite sales behavior, such as case 2, it should be considered that the seller constitutes an "unauthorized use" behavior. It can be concluded that the buyer and the seller are confused.
Author Huang,
Written on 20 19-5-22
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