Then, what should you do when you find that the trademark you have worked so hard to "raise" has been used casually by others?
First of all, we should understand that not all acts of using trademarks with the same name or similar appearance are trademark infringement.
So, what is trademark infringement?
Article 57 of China's Trademark Law stipulates that any of the following acts is an infringement of the exclusive right to use a registered trademark:
1. Using the same trademark as its registered trademark on the same commodity without the permission of the trademark registrant;
2. Without the permission of the trademark registrant, using a trademark similar to its registered trademark on the same kind of goods, or using a trademark identical with or similar to its registered trademark on similar goods, is likely to cause confusion;
3. Selling goods that infringe the exclusive right to use a registered trademark;
4. Forging or manufacturing others' registered trademarks without authorization or selling forged or manufactured registered trademarks without authorization;
5. Changing its registered trademark without the consent of the trademark registrant, and putting the goods with the changed trademark on the market again;
6. Deliberately providing convenience for infringing upon the exclusive right to use a trademark of others and helping others to infringe upon the exclusive right to use a trademark;
7. Causing other damage to the exclusive right to use a registered trademark of others.
In other words, using other people's trademarks on the same or similar goods, selling these goods, and providing forged trademarks for these goods are all acts of trademark infringement.
How to judge whether an act already belongs to trademark infringement?
Now teach you the "four-step judgment method":
The first step is to judge whether there are objective damage facts;
The second step is to judge the illegality of the behavior;
The third step is to judge whether the existing damage facts are caused by illegal acts;
The fourth step is to judge whether the behavior is intentional.
If after careful appraisal, it is found that the trademark has been infringed, then you can solve this matter in three ways:
First, negotiate with the infringer;
Second, request the administrative department for industry and commerce to handle it;
Third, bring a lawsuit to the people's court.
Generally speaking, if it is settled through consultation or requested to be handled by the administrative department for industry and commerce, it is also possible that negotiation fails. In this case, we have to choose the way to bring a lawsuit to the people's court.
Below, we will focus on several points that should be paid attention to when filing a trademark infringement lawsuit:
1. Collect evidence
Evidence is an important factor in determining the outcome of a case. Whether the obligee collects the evidence of infringement comprehensively, accurately and fully is directly related to the final fact finding and judgment result of the court, and is also the main basis for calculating the compensation for losses, which plays an important role in effectively safeguarding the legitimate rights and interests of the trademark owner.
Therefore, it is a very important step to collect evidence before filing a trademark lawsuit. We should try our best to find evidence related to the case that can prove the true situation of the case:
(1) Proof of prior rights of the infringed. (including trademark registration certificate, patent certificate, copyright registration certificate, award-winning certificate related to the case, etc.). );
(two) the product samples of the infringed;
(3) samples of infringing products;
(4) proof of purchase of infringing products (mainly refers to purchase invoices. Be sure to 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, etc. On the invoice.
2. Consulting professional organizations
After the preliminary collection and collation of evidence, you should go to a professional institution for consultation. 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.
It should be pointed out here 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.
Step 3 file a public prosecution
The indictment, like the evidence, is a direct factor that directly affects the progress of the case and cannot be ignored.
As a legal document, the indictment has strict requirements on its format and content. The nature of the case, the types of documents, the matters requested, the facts and reasons, etc. It should be filled out clearly. In terms of content, it should be based on facts, take specific legal provisions as the criterion, and embody the spirit of obeying laws and regulations, and the litigation request should be written clearly, concretely, exhaustively and concisely. In addition, the making of the indictment should also pay attention to the effective combination of facts and tone, which is conducive to the smooth progress of the case.
If you are not familiar with the legal provisions, Xiao Zhi suggested entrusting professionals to complete it. The indictment made by professionals with professional legal knowledge and rich experience is more standardized and accurate, which can greatly improve the possibility of winning the case.
4. Pre-litigation protective measures
Before starting a formal lawsuit, in order to protect their own interests to the maximum extent, according to the provisions of Articles 65 and 66 of the Trademark Law, the obligee can put forward pre-litigation evidence preservation and pre-litigation interim measures to the people's court before prosecution, so as to avoid the loss of evidence or irreparable loss caused by trademark infringement and effectively protect the legitimate rights and interests of the obligee.
It is worth noting that if you want to apply for interim measures before litigation, the applicant must provide evidence to the people's court to prove that others are committing or will commit acts that infringe on their exclusive right to use trademarks, and if such acts cannot be stopped in time, the legitimate rights and interests of the applicant will be irretrievably damaged. If no evidence can be provided or the evidence is insufficient, it will be impossible to apply for interim measures before litigation.
Trademark registration application trademark infringement