In China, trademarks can be composed of characters, graphics or a combination of the two, in which characters include Chinese or foreign languages. At present, "three-dimensional trademark", "sound trademark" and "smell trademark" are not the objects protected by China's trademark law.
China's Trademark Law stipulates that characters, graphics or their combinations used in trademarks should have distinctive features and be easy to identify. At present, it is difficult to make a unified standard for the distinctiveness of trademarks. For different goods and different trademarks, the standard of distinctiveness is different, but registered trademarks will definitely enable consumers to distinguish the goods of different enterprises.
In addition, China's Trademark Law has the following requirements for prohibiting words or graphics that constitute trademarks:
1, which is the same as or similar to the name, national flag, national emblem, military flag and medal of People's Republic of China (PRC);
2. It is identical with or similar to the name, national flag, national emblem and military flag badge of a foreign country;
3. It is identical with or similar to the flag, emblem and name of an intergovernmental international organization;
4, with the "Red Cross" and "Red Crescent" signs, names the same or similar;
5. General name and graphics of this product;
6. Directly indicating the quality, main raw materials, function, use, weight and quantity of the goods;
7. Ethnic discrimination;
8. Exaggerated propaganda and deception;
9, harmful to socialist morality or other adverse effects;
10, the name of administrative divisions at or above the county level in China or foreign names well known to the public.
2. How should enterprises choose and design trademarks?
Trademark embodies the corporate image and is the spiritual business card of the enterprise. People usually know a company from its trademark. Therefore, it is very important to choose a good trademark in design. Once the trademark of the enterprise is determined, the next step is to invest huge sums of money in advertising, expand popularity, and let the public know, accept and like it. If the original trademark is not well designed and selected, it is found that it is not suitable for consumers' tastes, which is not conducive to the promotion of products and services. Changing the trademark again will bring great losses to enterprises. First, economic losses, the investment in advertising fees will be wasted; Second, time is lost. It takes time to choose a new trademark, and it takes about one and a half years to register a new trademark. What about this intermediate enterprise? Nowadays, many enterprises choose trademarks casually and have no long-term planning. This situation should change.
So how to design and choose a trademark?
Some enterprises design their own choices, and most of them are designed and screened by external forces. Smarter enterprises do not hesitate to collect money from the society.
For example, in order to design a trademark that conforms to the customs and trademark laws of all countries in the world, Mobil Oil Company invited experts from all walks of life to investigate 55 countries and regions for six years at a cost of more than 654.38 billion US dollars, and finally selected an "Exxon" trademark from more than 654.38 billion trademarks designed. It can be seen how important it is to choose and design a trademark.
Whether collecting from the society, entrusting others to design or designing and selecting trademarks by enterprises themselves, the following points should be considered:
(1) legality. Trademark laws in China and other countries, including the Paris Convention for the Protection of Industrial Property, prohibit trademarks. If it is only used and registered in China, it must comply with the provisions of the Trademark Law of China. If products are to be exported abroad, they must be used and registered abroad, and must also comply with the provisions of foreign trademark laws.
(two) in line with folk customs, folk customs and national habits. Trademarks must cater to consumers' tastes and never use words or graphics that consumers are afraid of. Owls, for example, are taboo in many places in China. If the owl trademark is used on the goods, then these goods will definitely not be sold in these taboo areas. In addition, a suitable trademark in China may not work in another country, because the customs and habits of each country are different. Therefore, enterprises must consider racial factors when choosing trademarks.
(3) Trademarks shall be consistent with the characteristics of the goods or services used. Every commodity has its own characteristics and uses, so when choosing a trademark, we should consider these characteristics and uses to avoid adverse effects. For example, if a trademark is suitable for pesticides, it cannot be used for food. "Enemy killing" is a good implied trademark of pesticides and must not be used in drinks.
(4) originality. Originality means that trademark design should be creative and original. Originality can produce amazing works, create attractive trademarks and then develop into well-known trademarks. Kodak (KO-DAK), SONY (Sony), Mercedes-Benz and Haier are all original trademarks. In China, many enterprises are used to choosing flowers, birds, insects, landscape trees, cultural relics, birds and animals as trademarks, such as dragons, phoenixes and the Great Wall. Lack of innovation, unattractive, can not meet the requirements as a good trademark.
Of course, in recent years, there have been many trademark masterpieces that have broken through the traditional frame constraints, boldly conceived and unconventional, such as the "Jianlibao" trademark in Guangdong, the "Wahaha" trademark of Wahaha Company in Hangzhou, and the "Founder" trademark of Founder Group Company in Peking University. The "Red Bean" trademark of Jiangsu Hodo Group Co.,Ltd. Co., Ltd. is also a trademark masterpiece, which reminds people of the poem "Acacia" written by Wang Wei, a great poet in the Tang Dynasty: "When those red berries come in spring, they flush on your southern branches and take them home for a hug, for me as a symbol of our love." It is through this innovative brand that Red Bean Clothing Company has developed and grown in just a few years.
3, the difference between trademark and commodity name
Commodity name is the general name of commodity, and its function is to distinguish different kinds of commodities. The function of trademarks is to distinguish goods produced by different producers.
4, the difference between trademark and trade name number contact.
Trade names, also known as manufacturers' names, are the names of enterprises, and trade names are part of industrial property rights. Like trademarks, they are also protected by law. Its function is to identify different enterprises in a certain geographical range and an industry. But also the identification of the whole enterprise. The function of trademark is to distinguish the goods of one enterprise from those of other enterprises. A trade name must be registered in accordance with the Conditions for the Administration of Enterprise Name Registration before it can be obtained and used, and used and managed according to regulations. Trademarks must be managed and used in accordance with the Trademark Law. A trademark may or may not be registered, and the legal effects of trademark registration and trade name registration are different. Once a trademark is approved for registration, no one else may use or register the same or similar trademark on the same or similar goods nationwide. On the other hand, regional protection is implemented for trade names. Another difference between trademarks and trademarks is that an enterprise can use and register many trademarks, while there is only one trade name.
Trademarks and trade names are closely related. They often appear on the same commodity or commodity packaging at the same time, and interact and cooperate with each other, while * * * plays the role of identification and promotion.
5, the difference between trademark and decoration
Commodity decoration is the decoration on commodity packaging, and its main function is to beautify commodities and attract consumers. The main differences between trademarks and commodity decoration are as follows: first, the main function of trademarks is to distinguish manufacturers or operators of commodities, while commodity decoration is to beautify commodities to arouse consumers' desire to buy; Secondly, trademarks should have distinctive features, and the composition should be concise, lively and eye-catching. Commodity decoration is generally composed of complex patterns and colors. Thirdly, once a trademark pattern is registered, it cannot be changed, protected by trademark law, and the decoration of goods can be changed at will. Finally, the content of a trademark can not show and explain the content, nature and characteristics of a commodity, but as a decoration of a commodity, it can show the content, nature and characteristics of a commodity.
6. Weaknesses of unregistered trademarks
1) Trademark users do not enjoy the exclusive right to use trademarks.
2) Once others have registered the trademark first, the first user of the trademark can no longer use the trademark.
3) The unregistered trademark may be the same as or similar to the registered trademark used on the same or similar goods, thus causing infringement.
4) Unregistered trademarks cannot form industrial property rights, so they cannot become intangible assets of users.
In short, the use of unregistered trademarks will affect the production and business activities of enterprises.
7. What trademark can apply for international registration?
A trademark applying for international registration must be a trademark that has been registered in China or preliminarily approved. The name of the applicant shall be exactly the same as the name registered in China; The trademark shall be completely consistent with the trademark registered in China, and the goods and services reported shall be the same as or within the scope of those registered in China.
8. Who can apply for international registration of trademarks?
The applicant shall have a real and effective business place in China; If not, the applicant should have a residence in China; If there is no domicile, the applicant shall have China nationality and be a national of a non-member country of the Madrid Agreement. If there is a foreign-funded enterprise in China, he can also apply for international registration with the Trademark Office in China. In addition, both corporate legal persons and natural persons in Taiwan Province Province can apply for international registration with China's Trademark Office, and their qualifications are regarded as mainland applicants.
9. What is a trademark objection?
Anyone can raise an objection to a trademark that has been preliminarily approved and announced by the Trademark Office within three months from the date of announcement. The so-called objection refers to raising an objection to the trademark preliminarily approved and announced by the Trademark Office according to law, and asking the Trademark Office to deny the trademark preliminarily approved, that is, after the expiration of the prescribed three-month objection period, asking the Trademark Office not to approve the registration of the trademark. The person who raises the objection may be the interested party of the trademark. Considering that the trademark announced in the preliminary examination and approval is the same as or similar to the registered trademark of the same or similar goods or services or the trademark preliminarily examined and approved, and requesting the Trademark Office not to approve the registration of the trademark in order to safeguard its own interests; The person who raises the objection may also be the general public, who thinks that the trademark announced in the preliminary examination violates the prohibition clause stipulated in the Trademark Law, and therefore requests the Trademark Office not to approve the registration of the trademark.
10, objection application procedure
Where an objection is raised to a trademark that has been preliminarily approved and announced by the Trademark Office, the objector shall submit a Trademark Objection in duplicate to the Trademark Office, indicating the issue number, page number and preliminary examination number of the Trademark Announcement published by the objected trademark, and the Trademark Office shall submit the Trademark Objection to the objector, who shall give a reply within 30 days from the date of receiving the notice and make a ruling based on the facts and reasons stated by the parties; If no reply is made at the expiration of the time limit, the Trademark Office may execute the ruling and notify the relevant parties. Where the objected trademark is announced for registration before the objection ruling takes effect, the registration announcement of the trademark is invalid.
If the objector and the objector are dissatisfied with the objection ruling made by the Trademark Office, they may file a review with the Trademark Review and Adjudication Board within 15 days from the date of receiving the notice of the objection ruling.
1 1, infringement treatment
In the process of market economy activities, we often find such problems. The well-known products of many well-known enterprises often suffer from counterfeit products, which brings serious damage to the reputation of well-known enterprises. At the same time, some lawless elements try to circumvent the law and use the same or similar packaging, decoration and trademarks as those of well-known goods on the same or similar goods, so as to achieve the purpose of confusing fish with pearls. Its behavior not only damages the prior rights of enterprises, but also seriously damages the legitimate rights and interests of consumers. It is urgent to crack down on the above-mentioned illegal acts. Only in this way can the legitimate interests of enterprises be protected to the maximum extent.
What should you do if a similar situation happens to you?
First, pay attention to the collection of evidence. Because only in the case of sufficient evidence, it is beneficial for administrative law enforcement organs or judicial organs to determine whether an act belongs to infringement as soon as possible. Therefore, evidence is the premise of handling a case. The procedural law stipulates that all facts that prove the true situation of a case are evidence. Therefore, we should strictly abide by this principle when collecting evidence. In other words, we should try our best to find evidence related to the case that can prove the true situation of the case. Generally speaking, the evidence we are talking about here mainly refers to the following aspects: 1, the proof of the prior rights of the infringed. (including trademark registration certificate, patent certificate, copyright registration certificate, award-winning certificate related to the case, etc.). ) 2. Product samples of the infringer. 3. Samples of infringing products. 4. Proof of purchasing infringing products. Here mainly refers to the purchase invoice. The invoice must indicate the name of the infringing product, the place where the infringing product was purchased, the price of the infringing product, the name of the seller and other matters.
The second step is to consult a professional organization after collecting and sorting out the evidence. Professionals will make a preliminary analysis of the case and provide professional advice on the details, which will help us to handle the case better.
What needs to be pointed out here is that there are generally two ways to deal with infringement cases. 1, administrative investigation. The main advantages of this method are strong investigation and quick investigation. Rapidly cracking down on counterfeiters and sellers can effectively stop the spread of infringement. However, it is difficult to give legal effect to the plaintiff's exhaustion principle by using this method alone. This refers to the issue of damages. Generally speaking, the infringer will bring economic losses to the infringed, and the complainant will invest some money and manpower to stop the infringement. Many enterprises hope that the infringer can provide some economic compensation to the infringed, so as to make up for the losses suffered by the infringed. The current Trademark Law and Product Quality Law also have clear provisions (see Trademark Law for details). However, it is difficult to claim compensation through administrative organs, so the rights of the infringed person cannot be exhausted. 2. Proceedings. The advantage of applying this procedure is that the investigation power is great, and the complainant can ask the infringer to compensate the infringer for the losses caused by the infringing act. However, the litigation procedure is relatively complicated, and it is difficult for the complainant to execute it alone without the assistance of a professional lawyer.
The author thinks that there is a problem of value choice here, which should be analyzed according to the specific circumstances of different cases.
The third step is to complain or sue. When making a complaint or prosecution, we should pay attention to the effective combination of facts and tone in order to facilitate the smooth progress of the case. The author believes that the complaint or indictment is the most direct factor that directly affects the progress of the case, and it is recommended to entrust professionals to complete it.
At the same time, China's Trademark Law clearly stipulates that "foreigners or foreign enterprises applying for trademark registration and handling other trademark matters in China shall entrust an organization designated by the state as an agent". In other words, foreigners or foreign enterprises should entrust organizations designated by the state to handle trademark infringement cases in China.
Finally, make a complaint or prosecution.
12. When signing a registered trademark license contract, you should pay attention to the following situations.
1. The licensed trademark must be a registered trademark, and the licensor must be the registrant of the registered trademark. This should be self-evident, because only registered trademarks have the exclusive right to use trademarks, and the right to use licenses is only a derivative of the exclusive right to use trademarks. However, in real life, due to the lack of trademark knowledge, some people actually accept the license of unregistered trademarks and pay the license fee to the licensor. This happens between domestic enterprises. After opening to the outside world, many enterprises in China accepted the license of unregistered trademarks of foreign businessmen in China and paid the license fee, so they were cheated and suffered economic losses. In another case, a non-registered person "licensed" another person's registered trademark to a third person and ran away after obtaining benefits or infringement was discovered, resulting in the "licensee" being punished. Therefore, when signing a trademark licensing contract, we should first examine whether the licensed trademark is a registered trademark, and then examine whether the licensor is the registrant of the registered trademark.
2. The licensee must be an enterprise, institution, social organization, individual industrial and commercial household, individual partnership, foreigner or foreign enterprise that meets the requirements of Article 9 of the Trademark Law; If the licensed trademark is a registered trademark used on drugs or tobacco products for human use, the licensee must also have corresponding qualifications, such as a certificate from the health administrative department or a certificate from the national tobacco authority approving production. Therefore, China citizens cannot sign trademark license contracts in their own names, and enterprises that produce medicines or tobacco products for human use without the approval of the competent state departments cannot sign registered trademark license contracts for medicines or tobacco products for human use.
3. The licensee shall not use the goods or services with the licensed trademark beyond the scope of the goods or services approved by the Trademark Office.
4. Anyone who uses another person's registered trademark with permission must indicate the name of the licensee and the place of origin of the commodity on which the registered trademark is used. In violation of these regulations, the administrative department for industry and commerce where the licensee is located may order the licensee to make corrections within a time limit, confiscate its trademark logo, and may impose a fine of less than 50,000 yuan according to the circumstances. Due to the limitation of objective conditions and technical level, the products or services produced by the licensee are different from those provided by the licensor. In order to facilitate consumer identification and shopping convenience, it is necessary for the licensee to indicate his name and address on the goods using the licensed trademark according to law.
Signing a trademark license contract is of great significance, and both parties must treat it with caution. It is best to hire professionals from the Trademark Office as consultants, or let the Trademark Office handle licensing matters as an agent. Generally speaking, a trademark licensing contract shall include the following main clauses:
(1) Name and address of licensor and licensee;
(2) the validity period, certificate number and registered trademark of the licensed registered trademark;
(3) The scope and name of the licensed commodities;
(4) the form of license;
(five) the license period, the number of products using the licensed trademark and the product sales area;
(six) the use fee and its payment method;
(seven) commodity quality requirements and quality supervision measures;
(eight) the printing or supply methods and requirements of trademark marks;
(9) Conditions for termination and dissolution of the contract;
(10) Liability for breach of contract;
(1 1) Effective date of the contract;
(12) Signature and seal of the other party.
The core content of a trademark licensing contract is to stipulate the rights and obligations of the licensor and the licensee.
As far as the licensor is concerned, its main rights are as follows: first, collect royalties; The second is to supervise the quality of the goods that the licensee uses its registered trademark. The licensor's main obligation is to protect the licensee's right to use the trademark. During the validity period of the contract, the Licensor shall not give up the renewal registration of the trademark without authorization, nor shall it cancel the licensed trademark.
As far as the licensee is concerned, whether its main right is to use the licensed registered trademark reasonably according to the contract. The main obligations of the licensee are: first, pay the royalties according to the contract; The second is to ensure the quality of the goods using the registered trademark of the licensor and accept the supervision of the licensor; Third, use registered trademarks to mark the name of the enterprise and the place of origin of the goods; Fourth, whether to transfer the right to use to a third party.