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Viewpoint... Try to analyze the common mistakes of trademark rights protection -- take the "Pipiru" trademark rights protection as an example.

Published:

2021-12-27

"The King of Fairy Tales" is a classic monthly fairy tale that I have read since I was a child. Cpaing and Rusisi are also "good friends" who accompanied me to grow up. Even now, when I see "Shuke Shuke, Shuke, who flies a plane; Beta Beta, Beta, who drives a tank," I can't help but sing. However, I was still surprised when I saw that Mr. Zheng Yuanjie was forced to suspend publication of "Fairy Tale King" in January 2022 because he devoted himself to trademark counterfeiting and rights protection. This also fully shows that "art comes from life and is higher than life", "accident and tomorrow do not know which will come first". In writing, I admire Teacher Zheng Yuanjie very much. Your work has influenced children for decades. This achievement is indeed enough to be proud. However, the author confirms that he is more professional than Mr. Zheng in trademark rights protection. After searching and analyzing many news reports and available public judgments and administrative ruling documents, the author has to say, Mr. Zheng, you are wrong. you really have to memorize this pot yourself! In many news articles, the author saw that Mr. Zheng mainly inquired about the files and review processes of the three trademarks, which are mainly aimed at "cpaing trademark No. 7197328, trademark No. 8229932, trademark No. 5423972, trademark struggle and rights protection", as follows: No. 7197328 Cpaing trademark No. 8229932 "Fairy Tale King" Trademark No. 5423972 "Shuke" trademark Judging from the above trademark files and the time of applying for invalidation, Mr. Zheng Yuanjie was indeed a little negligent. Take the trademark "cpaing" No. 7197328, which you spent the most energy on, as an example, and briefly analyze your mistakes. 1. Objection procedure error Judging from the process files, when the trademark entered the three-month preliminary examination announcement (June 27, 2010-September 27, 2010), you had already discovered the trademark and filed an application for trademark objection, but you filed an application for objection on the first day after the expiration (September 28, 2010), so it was bound to be rejected, thus missing the best time to protect rights. 2. Errors in the invalidation procedure According to the provisions of Articles 44 and 45 of the Trademark Law, applications for trademark invalidation may be filed at different times according to different legal bases. According to the news report and the author's analysis of the rights possessed by Mr. Zheng Yuanjie, Mr. Zheng believes that "Pipiru" is the name of the main character in the fairy tale "Pipiru and Lu Xixi" written by you, so it should not be registered as a trademark by others. There is no doubt that Mr. Zheng wrote the story of "Pipiru and Lu Xixi", and Mr. Zheng has the copyright of the story. It's just that copyright protects the expression of the work, not the author's thoughts, nor the name of the work, let alone the name of the story character. According to the principle of statutory rights, rights that are not expressly stipulated in the law do not constitute a right, that is to say, the names of characters in the story do not enjoy copyright. However, the law does not allow others to use the name of the role created by the author to seek illegitimate interests. After the continuous development of the law, the international community generally began to use a new name "commercialization right" to protect such interests, and in the application of trademark law, it is given the same status as other prior rights. Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation (No. 19 [2020] of the current law) issued on January 10, 2017, implemented on March 1, 2017 and revised on December 23, 2020 clearly stipulates that "for works within the copyright protection period, if the name of the work and the name of the role in the work have a high reputation, the use of it as a trademark on the relevant goods can easily lead the relevant public to mistakenly believe that it has been approved by the right holder or has a specific connection with the right holder, and if the parties claim that it constitutes a prior interest, the people's court will support it." It can be seen that Mr. Zheng wanted to claim the prior right to the "Pipiru" trademark. The disputed trademark violated the provisions of Article 32 of the Trademark Law and applied for the invalidation of the trademark. However, it should be pointed out that if the claim of invalidity through this reason must be "within five years from the date of trademark registration" and "for malicious registration, the owner of a well-known trademark is not subject to the five-year time limit." Through the trademark process, it can be seen that Mr. Zheng applied for invalidation on May 25, 2018, which far exceeded the legal time limit of five years (September 28, 2015) from the date of trademark registration. Mr. Zheng did not make the request within five years. No matter intentionally or unintentionally, or just because he did not understand the law, he gave up this right. Therefore, when applying for invalidation, Mr. Zheng can only try to use "those who violate the provisions of Article 4, Article 10, Article 11, Article 12 and Article 19, paragraph 4 of this Law, or obtain registration by deception or other improper means" to circumvent the limit of more than five years. However, at present, teacher Zheng has not received support for this reason. Therefore, the trademark "Pipiru" No. 7197328 was maintained and registered after court hearing. In this invalidation case, the Beijing Higher People's Court has issued (2019) Jingxing Final Administrative Judgment No. 10150, and the State Intellectual Property Office has also implemented the judgment and maintained the registration of the trademark. The reasoning part of the judgment clearly pointed out that the three characters "Pipiru" have neither adverse effects, nor will they bring about misidentification of characteristics such as quality, and there is no case of registration by improper means, and registration should be maintained in accordance with the law. In order to balance the interests and stabilize the trademark status, China's Trademark Law gives the prior right holder five years to claim the right, and if he does not claim it for five years, it will be regarded as a waiver. There is always a time limit for the protection of rights. Therefore, the trademark "Pipiru" No. 7197328 is indeed legally registered, which has nothing to do with morality. Through the above analysis, it can be seen that Mr. Zheng Yuanjie has made many mistakes in the process of safeguarding his rights for 10 years, which has caused this embarrassing situation. As a professional intellectual and a reader of Mr. Zheng for many years, I really admire Mr. Zheng for devoting all his energy to trademark rights protection by stopping the publication of "The King of Fairy Tales". We really need this kind of "true" spirit of rights protection at present, but we should also remind you-copyright owners, name owners, name owners, design patent owners and other prior rights holders, we should pay attention to the situation of other people's registered trademarks in time. If we encounter the trademark being registered maliciously by others, we must timely submit a request for invalidation. We must not delay the five-year legal period after the trademark is approved and registered. Otherwise, after five years, it will really increase the difficulty of safeguarding their rights for no reason, and even cause irreparable consequences. Naturally, the best way is not to be invalidated after being registered, a better corporate trademark strategy, and look at the next decomposition.

In writing, I admire Teacher Zheng Yuanjie very much. Your work has influenced children for decades. This achievement is indeed enough to be proud. However, the author confirms that he is more professional than Mr. Zheng in trademark rights protection. After searching and analyzing many news reports and available public judgments and administrative ruling documents, the author has to say, Mr. Zheng, you are wrong. you really have to memorize this pot yourself!

In many news articles, the author saw that Mr. Zheng mainly inquired about the files and review processes of the three trademarks, which are mainly aimed at "cpaing trademark No. 7197328, trademark No. 8229932, trademark No. 5423972, trademark struggle and rights protection", as follows:

No. 7197328 Cpaing trademark

No. 8229932 "Fairy Tale King" Trademark

No. 5423972 "Shuke" trademark

Judging from the above trademark files and the time of applying for invalidation, Mr. Zheng Yuanjie was indeed a little negligent. Take the trademark "cpaing" No. 7197328, which you spent the most energy on, as an example, and briefly analyze your mistakes.

1. Objection procedure error

Judging from the process files, when the trademark entered the three-month preliminary examination announcement (June 27, 2010-September 27, 2010), you had already discovered the trademark and filed an application for trademark objection, but you filed an application for objection on the first day after the expiration (September 28, 2010), so it was bound to be rejected, thus missing the best time to protect rights.

2. Errors in the invalidation procedure

According to the provisions of Articles 44 and 45 of the Trademark Law, applications for trademark invalidation may be filed at different times according to different legal bases.

According to the news report and the author's analysis of the rights possessed by Mr. Zheng Yuanjie, Mr. Zheng believes that "Pipiru" is the name of the main character in the fairy tale "Pipiru and Lu Xixi" written by you, so it should not be registered as a trademark by others. There is no doubt that Mr. Zheng wrote the story of "Pipiru and Lu Xixi", and Mr. Zheng has the copyright of the story. It's just that copyright protects the expression of the work, not the author's thoughts, nor the name of the work, let alone the name of the story character. According to the principle of statutory rights, rights that are not expressly stipulated in the law do not constitute a right, that is to say, the names of characters in the story do not enjoy copyright.

However, the law does not allow others to use the name of the role created by the author to seek illegitimate interests. After the continuous development of the law, the international community generally began to use a new name "commercialization right" to protect such interests, and in the application of trademark law, it is given the same status as other prior rights. Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation (No. 19 [2020] of the current law) issued on January 10, 2017, implemented on March 1, 2017 and revised on December 23, 2020 clearly stipulates that "for works within the copyright protection period, if the name of the work and the name of the role in the work have a high reputation, the use of it as a trademark on the relevant goods can easily lead the relevant public to mistakenly believe that it has been approved by the right holder or has a specific connection with the right holder, and if the parties claim that it constitutes a prior interest, the people's court will support it."

It can be seen that Mr. Zheng wanted to claim the prior right to the "Pipiru" trademark. The disputed trademark violated the provisions of Article 32 of the Trademark Law and applied for the invalidation of the trademark. However, it should be pointed out that if the claim of invalidity through this reason must be "within five years from the date of trademark registration" and "for malicious registration, the owner of a well-known trademark is not subject to the five-year time limit." Through the trademark process, it can be seen that Mr. Zheng applied for invalidation on May 25, 2018, which far exceeded the legal time limit of five years (September 28, 2015) from the date of trademark registration. Mr. Zheng did not make the request within five years. No matter intentionally or unintentionally, or just because he did not understand the law, he gave up this right.

Therefore, when applying for invalidation, Mr. Zheng can only try to use "those who violate the provisions of Article 4, Article 10, Article 11, Article 12 and Article 19, paragraph 4 of this Law, or obtain registration by deception or other improper means" to circumvent the limit of more than five years. However, at present, teacher Zheng has not received support for this reason. Therefore, the trademark "Pipiru" No. 7197328 was maintained and registered after court hearing. In this invalidation case, the Beijing Higher People's Court has issued (2019) Jingxing Final Administrative Judgment No. 10150, and the State Intellectual Property Office has also implemented the judgment and maintained the registration of the trademark. The reasoning part of the judgment clearly pointed out that the three characters "Pipiru" have neither adverse effects, nor will they bring about misidentification of characteristics such as quality, and there is no case of registration by improper means, and registration should be maintained in accordance with the law.

In order to balance the interests and stabilize the trademark status, China's Trademark Law gives the prior right holder five years to claim the right, and if he does not claim it for five years, it will be regarded as a waiver. There is always a time limit for the protection of rights. Therefore, the trademark "Pipiru" No. 7197328 is indeed legally registered, which has nothing to do with morality.

Through the above analysis, it can be seen that Mr. Zheng Yuanjie has made many mistakes in the process of safeguarding his rights for 10 years, which has caused this embarrassing situation. As a professional intellectual and a reader of Mr. Zheng for many years, I really admire Mr. Zheng for devoting all his energy to trademark rights protection by stopping the publication of "The King of Fairy Tales". We really need this kind of "true" spirit of rights protection at present, but we should also remind you-copyright owners, name owners, name owners, design patent owners and other prior rights holders, we should pay attention to the situation of other people's registered trademarks in time. If we encounter the trademark being registered maliciously by others, we must timely submit a request for invalidation. We must not delay the five-year legal period after the trademark is approved and registered. Otherwise, after five years, it will really increase the difficulty of safeguarding their rights for no reason, and even cause irreparable consequences. Naturally, the best way is not to be invalidated after being registered, a better corporate trademark strategy, and look at the next decomposition.

Key words:

"Administrative Litigation Vision" (II) | Administrative Litigation Jurisdiction

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"Administrative Litigation Vision" (II) | Administrative Litigation Jurisdiction