On the protection of well-known trademarks, Article 6bis of the Paris Convention provides that: ? Claims for the cancellation of such marks shall be permitted for a period of at least five years from the date of registration, and the period for which a prohibition of use is permitted may be fixed by each Member State of the Union.? No time limit shall be prescribed for the filing of a claim for cancellation of registration or prohibition of use of a mark whose registration and use have been obtained by dishonest means.? According to this provision, if the registration is not obtained by deceptive means or used for deceptive purposes, then the owner of a well-known trademark can only cancel the registration if he disputes the registration within five years of its registration, and if the dispute is filed after five years, it can no longer be canceled. It can be seen that this also protects the rights and interests of other trademark owners. However, for the fraudulent means or used for the purpose of deception, then no matter when the owner of the well-known trademark objection, will be revoked. TRIPS Agreement, Article 16, paragraph 2, also made the same provisions, and the Paris Convention on the protection of well-known trademarks only provides for the protection of goods trademarks to extend to the protection of service trademarks.
China's new Trademark Law, Article 41, paragraph 2, provides that: ? If a registered trademark violates the provisions of Articles 13, 15, 16 and 31 of this Law, within five years from the date of registration of the trademark, the trademark owner or interested party may request the Trademark Review and Adjudication Board to rule on the revocation of the registered trademark. For registration in bad faith, the owner of a well-known trademark is not subject to the five-year time limit.? Visible, China's new "Trademark Law" to give the protection of well-known trademarks can be said to be in full compliance with the Paris Convention and the TRIPS Agreement, to give well-known trademarks is different from the general protection of trademarks, for the registration of well-known trademarks in bad faith, the owner of well-known trademarks will not be subject to the time limit of five years, and for general trademarks will be subject to the time limit of five years.
In addition, China's new Trademark Law also stipulates the prohibition of trademark? reverse counterfeiting?
In addition, the new Trademark Law also prohibits reverse counterfeiting of trademarks. Reverse Counterfeiting? As an infringement of trademark right, this provision is conducive to the prohibition of some foreign enterprises on the reverse counterfeiting of China's well-known trademarks, and creates a good precondition for China's enterprises to create internationally recognized brands. In addition, the new Trademark Law also empowers the industrial and commercial administrative departments to investigate and collect evidence to strengthen the investigation and handling of trademark violations, and empowers trademark owners to apply to the people's court to take measures to order the cessation of infringing acts and the preservation of property before the prosecution when they find infringing acts, which is also conducive to the protection of well-known trademarks.
But China's Trademark Law also has deficiencies, such as the dilution of well-known trademarks is not provided for. Dilution is an infringement, will lead to confusion about the source of goods, so that the infringer to take advantage of other people's trademark reputation, and directly weaken the well-known trademark publicity role, weaken the trademark on the quality of the goods to prove the role of the lawful rights and interests of consumers. Therefore, the author believes that for the protection of well-known trademarks should also take the following measures:
1. The act of dilution is stipulated as trademark infringement.
2. Prohibit people other than the owner of the well-known trademark from registering trademarks identical or similar to the well-known trademark on any goods.
3. It is prohibited to register another person's well-known trademark as a domain name.
Difference between well-known trademark protection and ordinary trademark protectionGenerally speaking, ? Chinese famous brand products? must have a trademark with high market recognition, similarly, the carrier of well-known trademark? products must be of high quality and have competitive advantages. Some products, such as Ordos brand cashmere sweater are both Chinese famous brand products and have the title of Chinese well-known trademark. These two honors also have mutual reference value in each other's recognition process.
However, there are obvious differences between Chinese famous brand products and well-known trademarks in many aspects:
1, the legal basis and implementation of the two departments are different. China's well-known trademarks are recognized in accordance with the "Chinese People*** and the State Trademark Law" and based on the law formulated by the ? Trademark Law Implementing Rules? and the State Administration for Industry and Commerce Decree No. 5 "on the identification and protection of well-known trademarks," the enterprise's well-known trademarks must be applied to the State Council Administration for Industry and Commerce Trademark Office, after the identification of well-known trademarks and enjoy the rights of well-known trademarks. The evaluation of China's famous brand products is based on the "Chinese People's **** and State Product Quality Law" and the "Quality Revitalization Outline" formulated by the State Council and the General Administration of Quality Supervision, Inspection and Quarantine Order No. 12, "China's Famous Brand Products Management Measures", the State General Administration of Quality Supervision, Inspection and Quarantine has authorized the China Famous Brand Strategy Promotion Committee to unify the organization and implementation of the evaluation of China's famous brand products.
2, the two have different connotations. Well-known trademark refers to the relevant public in China is widely known and enjoys a high reputation of the trademark. Chinese famous brand products refers to the physical quality of international advanced level of similar products, in the domestic similar products in a leading position, the market share and popularity of the industry in the forefront, the degree of user satisfaction, with strong market competitiveness of the product. It can be seen that the connotation of the well-known trademark is a trademark, while the connotation of the famous brand product is a specific product.
3, the two objects are different. Well-known trademarks are recognized by both the registered trademarks of domestic enterprises, including foreign enterprises registered trademarks in China, while the evaluation of famous-brand products is limited to the products of Chinese enterprises, and does not accept the use of foreign trademarks in the country (territory) of the application of the product.
4, the evaluation mechanism of the two are different. In accordance with the State Administration for Industry and Commerce of the new "Well-known Trademark Identification and Consideration Measures" stipulates that: Well-known trademarks will become a means of legal protection from an enterprise's honor, and will no longer be recognized by the state organization for the evaluation of the batch. The introduction of this new provision means that the history of the batch evaluation of well-known trademarks has become the past. The "Chinese famous brand products management measures" stipulates that: China famous brand products evaluation work once a year, every year by the China famous brand strategy to promote the Committee announced to carry out the evaluation of China's famous brand products product catalog. Any product application that is not in the evaluation catalog of that year will not be accepted.
5, the two recognized conditions are different. Well-known trademarks constitute: the use of the trademark registered history and the use of the scope of materials; on the trademark publicity and promotional activities of the way, the geographical scope, the type of publicity media, and the amount of advertising and other materials; the trademark in China or other countries or regions as a well known trademark is protected by the previous record of materials; the use of the trademark of the commodities in the last three years the production, sales, sales revenue, profits and taxes, sales area range of relevant materials. The evaluation of Chinese famous brand products focuses on the following The evaluation of China's famous brand products focus on: physical quality level; market share, export rate, brand awareness, annual sales, profits and taxes, industrial costs and expenses, profitability, the contribution of total assets; production and technical conditions and equipment, technological innovation, product development capabilities; product standards implemented by the level of measurement and testing system and measurement of enterprises to ensure the ability of quality management system; enterprise's after-sales service system and customer satisfaction. After-sales service system and customer satisfaction and other indicators must be at the forefront of the industry.
6, the consequences of the two recognized different. Well-known trademarks are recognized, can be greater than ordinary trademark protection, the recognition of well-known trademarks is to resolve trademark infringement disputes in a legal means of protection, it is used? Case-by-case determination? and the principle of passive protection. If a product that has been granted a well-known trademark encounters an infringement dispute, the well-known trademark can be submitted to the Trademark Office for arbitration as a protected record. According to the Measures for the Recognition and Consideration of Well-Known Trademarks, a well-known trademark has no significance to the enterprise if it leaves the infringement dispute. The evaluation of Chinese famous brand products, on the other hand, is mainly for the purpose of granting enterprises a kind of honor, which is part of the national reward mechanism.
How to Manage Trademark ApplicationsNowadays, it is hard to find companies that have a single-brand strategy, i.e., they always use only one trademark, and more and more companies tend to apply for new trademarks as they develop new products. To apply for a trademark, you need to pay 1000 RMB to the State Trademark Office, and you also need to pay the agent fee to the agent company. If you blindly apply for too many trademarks, it will be a financial burden to the enterprise. Enterprises want to continue to apply for new trademarks, but also to reasonably control costs, then the trademark application needs to be managed. Here are a few examples of actual trademarks, how to manage trademark applications.
I. Management of Registered Classes
China Intellectual Property News once reported: ? Xizhilang? (hereinafter referred to as Xizhilang) has applied for registration of 82 trademarks in all 45 categories, covering all categories, of which 68 are exclusive to Guangdong Xizhilang Group Co. Xizhilang? (hereinafter referred to as Xizhilang), and Xizhilang's "Xizhilang?" trademark is almost universally known in China. Shantou Qianye Cosmetics Co., Ltd. registered a trademark of Xizhilang in the category of shampoo and other products (Class 3). Xizhilang? The word mark was registered by Shantou Qianye Cosmetics Co. In order to fight for the trademark in the shampoo product category, Xizhilang was plunged into a long trademark battle. In this trademark battle spanning nearly 10 years, Xizhilang almost exhausted all the means given by the law, but the trademark in Class 3? Xizhilang? The trademark was finally awarded to Qianye.
Trademarks are registered by class, one class for one trademark. In the official website of the State Trademark Office, you can see that some enterprises have registered the same trademark in 45 major categories and all the minor categories, and the registration fee and agency fee alone is nearly 100,000 yuan. This practice of class registration is not desirable, the world is large, what company can have the strength to diversify to such a degree, the production of products and services can be covered by all 45 categories? Then the categories that can not be covered, its trademark can not be used, according to China's legal provisions of the trademark for three consecutive years of inactivity will be revoked registration. Xizhilang's ten years of perseverance and relentless guarding of its trademark position represents a kind of knot in the enterprise's heart. The media's belief that a company that registers the same trademark in other categories will face the chaos of dissent represents the public's concern, but this knot in the enterprise's mind and the public's concern are wrong. Enterprises only in the enterprise production of products and services provided by the relevant categories of registration can be, if you consider the development of enterprises, may be extended in the upstream and downstream of the product or service, you can consider in the possible extension of the product or service categories can be registered, not blindly expanding the category of registration, if the registration and can not be used by the revocation of the registration fee is a waste of money.
Second, the management of the registered subclasses
Trademark class total **** 45 categories, each category has a lot of subclasses. China's legal provisions of a trademark in a large class can be registered at the same time 10 small class, the cost of registering a small class and 10 small class is the same, which is the legal buy 1 free 9. spend the price of 1 to buy 10, of course, cost-effective. Some companies only want to register in the company's products or services involved in the small category, for the statutory gift is not appreciated. And the reality is that many companies start to register only one or two small categories, and then want to increase the registration of small categories, and then only to new trademarks and then apply, and then pay a fee. For example, a company? Overseas? Trademark, has registered in the 5th class, the first time only 1 subclass, and then in the same category and registered 3 subclasses, the registration cost doubled.
Three, the combination of trademark application management
Enterprise trademarks are increasingly diversified, from the composition of the pure Chinese elements, and gradually increased graphics and letters, more and more enterprises whose main trademarks by the Chinese characters, graphics, English (including Pinyin) constitute a combination of trademarks. In the examination process of the trademark office, each element of the combination trademark will be examined separately, and if an element is identical or similar to a previously registered trademark, it may be rejected. In practice, many enterprises in the use of the trademark process will change the trademark, this situation is legally known as fabrication, common fabrication: reduce the elements, or change the combination of elements, and the Chinese is most likely to be changed to change the use of fonts, or change the arrangement of the way, horizontal rows, vertical rows used in a more random, these fabrication behavior may lead to trademark revocation. In order to facilitate the registration, the author usually suggests that the combination of various elements of the trademark will be registered separately, the combination of use, if the enterprise really need to change the combination of trademarks, but also not because of trademark alteration and revocation.
The main purpose of the trademark is to facilitate consumers to identify, distinguish, and memorize, the same trademark if the form of too many trademarks, is bound to increase the difficulty of consumers to identify, memorize, so as to establish the brand image to combat counterfeiting is unfavorable. Therefore, trademarks should try to maintain a fixed form, do not easily change, we call it? The principle of no change. The core part of a combination of trademarks is Chinese characters, and this core part should be fixed, while some enterprises change it at will. In the official website of the State Trademark Office, it was found that Zhang Yu Company used the word "张裕" in Class 33. Zhangyu? The following table shows that Zhangyu has registered 12 trademarks at the same time. A? Zhangyu? is used in at least six different fonts and in three different arrangements. 12 trademarks are registered under the name "Zhang Yu". Zhang Yu? trademarks use at least six combinations, and its graphic elements are too many, so many fonts, contains so many graphic elements, so many combinations, consumers dazzling, difficult to recognize and remember. In? Pong famous brand? Rampant at the time of ? The main way to imitate famous trademarks is to imitate the famous trademarks. The main way is to imitate the design of the famous trademark, such as the crocodile's mouth towards the left, towards the right changes, Montjuic petal number of changes, etc., so that consumers can not distinguish between the real and the fake. And Zhangyu? Zhangyu? Trademark registration seems to avoid the suspicion of trademark variation, but it is in their own confusion, increasing the difficulty of consumer identification and memory, and it is very easy to let counterfeiters and brand-name brand exploit the loopholes.
To sum up, for the application of combination of trademarks, each element of the combination can be applied separately, but do not easily change the composition of the elements, so that consumers can quickly recognize and form a memory as soon as possible, and to prevent the bad intention of the brand and counterfeiters from stealing and changing to make counterfeit products.
Four, the applicant's management
Applicant management is the name of the trademark application, which does not seem to be a problem, directly in the name of the enterprise is the application, the reality of the enterprise or the owner of the enterprise there are more considerations. Many business founders want to apply in the name of the individual (the current trademark office to limit the name of the individual to apply for trademarks), so that the future and other shareholders have the initiative in the event of a dispute. When the enterprise develops into a group of companies, which company name should apply for the trademark? It seems that this issue has not attracted enough attention from enterprises. In the official website of the State Trademark Office, the name of the company is "Zhangyu". Zhangyu? as the keyword from? Applicant name? In the query, roughly 10 companies related to Zhangyu (without verifying whether it is indeed a subsidiary of Zhangyu Group) applied for trademarks, *** counted 269 trademarks applied for, of which 259 trademarks were registered in the name of Yantai Zhangyu Group Company Limited, and the other 9 enterprises only applied for 10. Although there are some subjects applying for trademarks in Zhangyu Group, the problem is not prominent. In the company of the author's service, many enterprises' trademarks are also scattered in the group's various companies registered, and some problems have been revealed. For example, the group's main trademark according to different categories were registered separately by other subsidiaries, the shareholding structure of these subsidiaries is quite complex, the group would like to unify the main trademark under the name of the group, the other subsidiaries are reluctant. A group has made joint registrations of its core trademarks, some of which were registered separately by different subsidiaries, and the group has encountered major obstacles in the transfer procedures. The trademark of an enterprise constitutes a complete system, the same trademark name if registered in different companies make the integrity of the system is cut off, easy to cause consumer confusion in the market, increasing the cost of consumer identification, memory, is not conducive to the promotion of the brand as well as the establishment of the image of the consumer? Thus, the group of companies applying for trademarks, should try to trademarks registered in the name of a company, or the establishment of intangible asset management company to unify the holding and management of the group's intangible assets, which will need to be scattered in the original registration in the various subsidiaries of the trademarks and other intangible assets all transferred to the intangible asset management company.
Entering the era of knowledge-based economy, trademarks and other intellectual property rights are becoming more and more important to enterprises, accounting for the proportion of the company's total assets gradually exceeded the proportion of tangible assets, and become the company's main assets, so effective management must be carried out, and the trademark application is the source, so the management of trademark application is particularly important.
The above is what I provide for you? How to protect the trademark of the enterprise? , I hope you can enjoy!