Viewpoint... The use of another person's registered trademark in the "trade name" is at risk of trademark infringement.
Published:
2024-01-02
The use of trademarks referred to in the Trademark Law refers to the use of trademarks on goods, commodity packaging or containers, and commodity trading documents, or the use of trademarks in advertising, exhibitions and other commercial activities to identify the source of goods. Whether the use of the trademark owner's registered trademark by means of "indicative use and narrative use" constitutes "fair use of trademark rights" requires specific analysis of specific issues.
Trial Summary
The registered trademark "A" of others was used in the name of the accused infringing commodity. The trademark "A" on the front of the accused infringing package was exactly the same as the plaintiff's trademark "A" in terms of font design and text size. The defendant only added the word "applicable" before the trademark "A", and the font was similar to "A, the" A "trademark is prominently marked on the conspicuous position of the package, which cannot make the relevant public perceive that the design is only to explain that the product is applicable to the plaintiff's product. The use mode has the function of identifying the source of the goods, and should not belong to the good faith use of the trademark owner's registered trademark in the form of" indicative use ", which belongs to trademark use and constitutes trademark infringement.
Brief of the case
1. The plaintiff company was established in 2002 with a wide range of business scope and long-term operation of infringing products. The company has good goodwill and high product popularity. After years of development, the plaintiff's products are of excellent quality and highly recognized by the public. In addition to long-term promotion, publicity, sales and maintenance, its brand has a very high reputation and reputation in the market. The plaintiff company enjoys the exclusive right of "A" trademark registration in accordance with the law and within the protection period.
2. The defendant company is a company specializing in the same products as the accused infringing products. In the course of its operation, it marked the "B" trademark registered by the defendant and marked the words "applicable to product A" in the name of its products.
3. The plaintiff company believes that the defendant's above-mentioned actions violated its "A" trademark exclusive right, and the infringing products produced and sold by the defendant seized its market share and attracted its potential consumers, so it sued the people's court.
4. The defendant company argued that "its obvious mark is applicable to A, and the mark is not used as a trademark to explain to customers that our products are applicable to A machinery and equipment".
Referee Points
First, the "A" trademark on the front of the accused infringing package is exactly the same as the "A" trademark on the plaintiff's genuine goods package in terms of font design and text size. The defendant only added the word "applicable" before the "A" trademark, and the font is similar to the "A" trademark, which cannot make the relevant public perceive that this design is only to explain that the product is applicable to the plaintiff's mechanical equipment, nor does it belong to the normal indicative mode of use. Second, there is a product description on the back of the package, and the defendant can state that the product is applicable to the plaintiff's mechanical equipment in the product description on the back. Third, the alleged infringing product, as an ordinary consumer product for automobiles, has no requirements for adaptability such as size and size. Therefore, there is no need for special instructions to apply the plaintiff's product. The defendant's argument is not in line with common sense. To sum up, the defendant's argument was not accepted by the court.
Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases stipulates that trademark similarity refers to the comparison between the trademark sued for infringement and the registered trademark of the plaintiff, the font, pronunciation, meaning or composition and color of the figure, or the overall structure after the combination of its various elements, or the similarity of its three-dimensional shape and color combination, it is easy for the relevant public to misunderstand the source of the goods or believe that its source is specifically related to the goods registered with the plaintiff's trademark. Specifically, in this case, the "Weichai Power" used in the conspicuous position of the product packaging of the alleged infringement is compared with the "A" trademark, text and graphic trademark registered by the plaintiff. The main identification text is "A", which is the same in text and pronunciation. Compared with the "A" text trademark, the text containing the "A" trademark is used in the conspicuous position of the product packaging of the alleged infringement, which is easy to cause confusion and misunderstanding, belong to the same or similar trademark.
According to the provisions of Article 57, paragraph 1, item (II), of the Trademark Law, the use of a trademark that is the same as or similar to a registered trademark on similar goods, which easily leads to confusion, is an infringement of the exclusive right to use a registered trademark. Specific to this case, the accused infringing product clearly marked the full name, address and telephone number of the defendant company, as well as the "B" trademark registered by the defendant. The Reply of the Supreme People's Court on Whether the Victims of Product Infringement Cases Can File a Civil Action with the Trademark Owner of the Product as the Defendant holds that any person who puts his name, name, trademark or other identifiable marks on the product, enterprises or individuals that indicate that they are product manufacturers are "producers" as stipulated in the the People's Republic of China Civil Code and the the People's Republic of China Product Quality Law ". Therefore, it should be determined that the defendant produced and sold the accused infringing product, and should bear the legal responsibility of stopping the infringement and compensating for the loss.
The result of the judgment: the 1. defendant shall immediately stop the production and sale of goods infringing the exclusive right of the plaintiff's "a" registered trademark from the effective date of this judgment; The 2. defendant shall jointly compensate the plaintiff Weichai Power Co., Ltd. for economic losses of XX yuan and reasonable expenses of XX yuan within 10 days from the effective date of this judgment, totaling XX yuan. The 3. rejected other claims of the plaintiff company.
Experience of undertaking the case
The use of trademarks referred to in the Trademark Law refers to the use of trademarks on goods, commodity packaging or containers, and commodity trading documents, or the use of trademarks in advertising, exhibitions and other commercial activities to identify the source of goods. Whether the use of the trademark owner's registered trademark by means of "indicative use and narrative use" constitutes "fair use of trademark rights" requires specific analysis of specific issues.
Relevant laws and regulations
Article 3, Paragraph 1, Article 48, Article 56, Article 57, Paragraph 1, Item (II), Item (III), Article 63 of the the People's Republic of China Trademark Law, Article 63 of the the People's Republic of China Company Law, Article 31 of the the People's Republic of China Sole Proprietorship Enterprise Law, Article 6, Item (I), Article 17 of the the People's Republic of China Anti-Unfair Competition Law, and Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases paragraph 1 of Article 4, Paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Unfair Competition.
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