Legal subjectivity:
What is the conflict between trademark rights and prior rights? 1. Determination of prior rights The fundamental role of a trademark is to distinguish goods and services, so a registered trademark should first be Avoid conflicts with previously applied or registered trademarks; and because the scope of rights involved in goods and services is not limited to trademark rights, to avoid confusion, registered trademarks should not conflict with other rights of others. Article 32 of the Trademark Law is a specific description of the spirit of this legislation. Therefore, the existing prior rights stipulated in this article refer to rights other than trademark rights that have been obtained before the date of application for registration of the disputed trademark. It mainly includes other intellectual property rights and related personal rights stipulated in the Civil Code. 2. Infringement of prior rights (1) Copyright infringement: Applying for a registered trademark for another person’s copyrighted work without the permission of the copyright owner shall be deemed as an infringement of other person’s prior copyright. The copyright owner can prove the existence of the copyright through the copyright registration certificate, evidence of prior public publication of the work, prior inheritance, transfer and other evidence. If the applicant for trademark registration in dispute can prove that his or her trademark was created independently, it does not constitute an infringement of others' prior copyright. (2) If the design patent right is applied for trademark registration on the same or similar goods for which another person has the patent right without the authorization of the patentee, it shall be deemed as an infringement of the prior design patent right of others. The determination that the disputed trademark is identical or similar to the design shall be determined in accordance with the examination standards of comparing the disputed trademark with the design as a whole, or comparing the main significant part of the disputed trademark with the essential parts of the design. (3) The trade name right applies to register as a trademark the same or basically the same wording as a trade name that has been previously registered and used by others and has a certain degree of popularity, which may easily lead the relevant public to mistakenly believe that the goods or services identified by the trademark come from the trade name owner. Or if there is some specific connection with the owner of the trade name right, which may cause damage to the interests of the owner of the prior trade name right, it shall be deemed as an infringement of the prior trade name right of others. (4) If one applies for a registered trademark of his or her real name, pen name, stage name, or alias without the permission of another person, which causes or may cause damage to the right of another person's name, it shall be deemed as an infringement of the other person's right of name. In the judgment process, the degree of awareness of the name right holder among the public should be considered. (5) If one applies for a registered trademark for his or her portrait without the permission of another person, which causes or may cause damage to the other person's portrait right, it shall be deemed as an infringement of the other person's portrait right. Although some disputed trademarks are different in composition from other people's portraits, they reflect the main image characteristics of others and can point the public's awareness to the portrait owner, and should also be deemed to be the use of their portraits. 3. The legal effect of prior rights The legal effectiveness of prior rights mainly manifests itself in two aspects: First, the existence of prior rights can become an obstacle to applying for trademark registration and a reason for the cancellation of a registered trademark. Second, the existence of prior rights can constitute a restriction on the exclusive right to register a trademark. (1) The prior right constitutes a hindrance to the application for trademark registration and the grounds for cancellation of the registered trademark. It can be concluded from Article 31 of the Trademark Law itself: If the trademark applied for registration is identical or similar to the prior right, or If there are other forms of conflicts, the trademark registration review department can directly reject the relevant trademark registration application; during the opposition procedure, the relevant right holder can also file an objection on the grounds of the existence of prior rights, thereby preventing the relevant trademark from being registered. For a trademark that has been registered even though it may conflict with other prior rights, the relevant rights holder may request the cancellation of the disputed trademark through dispute procedures. According to the provisions of Article 41 of the Trademark Law, a registered trademark violates the provisions of Article 13 (Protection of Well-known Trademarks) and Article 31 (Protection of Prior Rights and Protection of Unregistered Trademarks) of this Law , within five years from the date of trademark registration, the trademark owner or interested party may request the Trademark Review and Adjudication Board to rule on canceling the registered trademark. For cases registered in bad faith, the owner of a well-known trademark is not subject to the five-year time limit. The existence of prior rights can be a hindrance to applications for trademark registration and grounds for cancellation of registered trademarks, but it does not mean that any prior rights can have this legal effect. The author believes that only prior rights that are well-known nationwide or have a certain influence can become an obstacle to applying for trademark registration and a reason for the cancellation of a registered trademark.
The exclusive right to register a trademark is obtained through application and review procedures in accordance with the Trademark Law. The exclusive right is limited to the approved registered trademark and the goods (services) approved for use, but the scope extends to the entire country. Logically speaking, when a trademark owner applies for trademark registration, it is only possible to foresee those logos that already have high market visibility and take measures to avoid them, but it is difficult to foresee logos with low visibility. If any prior rights can prevent others from applying for trademark registration or canceling a registered trademark, it is tantamount to requiring the trademark registration applicant to search and avoid all possible prior rights marks, which is obviously impossible. At the same time, this may also lead to the instability of all registered trademark rights. In addition, from the perspective of social equity, this approach may cause serious unfairness and lead to a sharp increase in social costs. In addition, when registered trademarks, business names conflict with prior rights, whether such civil cases are within the scope of the court has not been explicitly stipulated, which has caused great controversy in judicial practice. Beijing Shengtong Sunshine Intellectual Property Consultant Cai Huaijiang reminded the public that prior rights holders or interested parties can file a trademark objection with the Trademark Office within 3 months from the date of announcement of the disputed trademark, or request the Trademark Review and Adjudication Board within 5 years from the date of registration. Declare the disputed trademark invalid. In trademark opposition and other procedures, judgments should also be made based on the specific circumstances of individual cases. If you hope to protect your rights through legal means, it is recommended that you conduct online consultation. A professional team of lawyers will answer your questions and protect your rights and interests promptly and legally. Legal objectivity:
Article 60 of the Trademark Law of the People's Republic of China. If any of the acts that infringe on the exclusive right to use a registered trademark as listed in Article 57 of this Law cause a dispute, the parties shall be responsible for If the dispute is not resolved through negotiation or negotiation fails, the trademark registrant or interested party may file a lawsuit with the People's Court or request the industrial and commercial administration department to handle the matter. When the administrative department for industry and commerce determines that the infringement is established, it shall order it to immediately stop the infringement, confiscate and destroy the infringing goods and tools mainly used to manufacture infringing goods and counterfeit registered trademarks. If the illegal business turnover exceeds 50,000 yuan, it may be punished. A fine of not more than five times the illegal business volume may be imposed. If there is no illegal business volume or the illegal business volume is less than 50,000 yuan, a fine of not more than 250,000 yuan may be imposed. Those who commit more than two trademark infringements within five years or have other serious circumstances shall be severely punished. If you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you legally obtained the goods and explain the supplier, the industrial and commercial administration department will order you to stop selling them.