The Latest Trademark Law Is Promulgated: Safeguarding Rights Is No Longer "Marathon"

　　 Administrative penalties and civil compensation have been stepped up for infringement of exclusive right to trademark.

"For malicious acts of infringement of trademark exclusive rights, administrative penalties and civil compensation efforts have been intensified, the protection of the rights of the more comprehensive." Li Shunde introduced the relevant provisions of the decision to strengthen the protection of trademark exclusive rights.

In the administrative penalty for infringing the exclusive right to trademark, the decision stipulates that the amount of illegal business volume of more than 50 thousand yuan may be fined 5 times less than the illegal business volume. If there is no illegal business volume or the illegal business volume is less than 50 thousand yuan, it may be fined not more than 250 thousand yuan; if the circumstances are serious, it will confiscate the tools that are mainly used for the manufacture of infringing goods and forging the marks of registered trademarks. Those who commit more than two trademark violations within five years or have other serious circumstances shall be severely punished.

In view of the fact that the cost of protecting the rights of the victims is high in the practice of trademark infringement cases and the phenomenon of "winning the lawsuit and paying the money", the "decision" introduced the punitive damages system, which stipulates that if the circumstances of serious infringement of the exclusive right of trademark are serious, the amount of compensation can be determined by the actual loss of the infringer as a result of the infringement, the interest gained by the infringer due to infringement, or the amount of the trademark license fee more than three times that of the trademark. The amount of compensation shall include the reasonable expenses paid by the obligee to stop the infringement. At the same time, the statutory compensation for infringement shall be changed from "500 thousand yuan or less" to "less than 3 million yuan", that is, the loss of the infringer due to infringement, the benefit gained by the infringer due to the infringement or the difficulty in determining the royalty of the trademark, and the court shall make a compensation of less than 3 million yuan according to the circumstances of the infringement.

Li Shunde pointed out that the statutory compensation amount of 3 million yuan is more reasonable. This is the amount of statutory civil compensation, which is only one of the measures to increase penalties for infringement of trademark rights, and the amount of compensation determined according to other circumstances in the decision and punitive damages may exceed 3 million yuan. The amendment stipulates that the amount of compensation for infringement of the exclusive right of trademark shall be determined according to the actual loss suffered by the obligee because of the infringement. The actual loss is difficult to determine, and it can be determined according to the interests gained by the infringer.

In view of the problem of the low amount of damages caused by the "difficulty of proof" of the obligee, the decision adds regulations: in order to determine the amount of compensation, the court has tried to give evidence to the right holder, while the books and materials related to the infringement act are mainly controlled by the infringer, and the infringer can provide the infringer with the books and materials related to the torts. If the infringers do not provide or provide false accounting books or materials, the court may determine the amount of the compensation for infringement by referring to the evidence claimed by the obligee.

　　 Well known trademark "rectify deviation", return to the original intention of the system

When the trademark law was amended in 2001, the provisions on the protection of well-known trademarks were added to the trademark law in order to fulfill the obligations of China's international conventions. Li Shunde introduced that there has been some deviation in the implementation of the well-known trademark system in China. There is a misunderstanding in the society that the well-known trademark is regarded as an honorary title. Many enterprises regard "well-known trademarks" as the "golden signboard" of selling products, blindly pursue the well-known trademark recognition at any cost, or even cheat. The serious alienation of the well-known trademark system has caused unfair competition to other enterprises.

According to the NPC Law and labor Commission, in order to clarify the well-known trademark protection system and make it return to the original intention of the malicious registration system, this amendment has made provisions in many aspects.

The decision further clarified the connotation of well-known trademarks, that is, "well-known trademarks for the relevant public". At the same time, in accordance with the principle of "case identification and passive protection", it clearly stipulates that when the holder considers that his rights are infringed upon, he may request the protection of well-known commercial trademarks in accordance with the provisions of this law. A well-known trademark should be identified according to the request of the parties concerned for handling the cases that need to be cognizant in trademark cases. Li Shunde explained that the Trademark Office, the Trademark Review and Adjudication Board and the court could not take the initiative to identify the well-known trademarks. Only when the parties filed an application for protecting their well-known trademarks in trademark cases, and indeed necessary, could they identify the well-known trademarks in the cases according to law and apply corresponding provisions.

The decision also prohibits the use of " well-known trademark In the name of advertising, avoid misleading consumers. It is stipulated that producers and operators shall not use the words "well-known trademarks" in commodities, commodity packages or containers, or in advertising, exhibitions and other commercial activities.

　　 Protection of unregistered trademarks, malicious spying will be rare in the future.

Violation of the principle of good faith and malicious registered trademarks are prominent in a period of time. Trademark law During the three deliberation process, members of the Standing Committee, experts, scholars and the general public are all concerned about how to curb this behavior and offer advice and suggestions.

The decision intensified the crackdown on malicious preemptive behavior, and prohibited the rush to register trademarks that had already been used first because of business contacts and other relationships. Some enterprises or individuals take advantage of the specific relationship between the first user and the trademark to malice the trademark, which seriously damages the interests of the prior user of the trademark. The "decision" adds that "a trademark that applies for registration of a similar commodity or similar commodity is the same or similar as that of a registered trademark which is not used by another person. If the applicant has any other contract or business relationship or other relationship with the other person, and is aware of the trademark of the other person, the objection shall not be registered".

The decision protects the rights of the prior user. It clearly stipulates that before a trademark registrant applies for a trademark registration, others have already used a trademark identical or similar to the registered trademark before the trademark registrant has the same or similar influence on the same commodity or similar commodity, and the exclusive right holder of the registered commercial name has no right to prohibit the user from continuing to use the trademark in the original use scope, but it may require additional appropriate identification marks.

In order to prohibit "naming famous brands", the "decision" adds regulations to use other registered trademarks and unregistered well-known trademarks as the names of the enterprises, misleading the public and causing unfair competition. It is dealt with in accordance with the Anti Unfair Competition Law of the People's Republic of China.

Li Shunde believes that the amendment of the trademark law takes good account of the connection with other related laws. In addition to docking with the anti unfair competition law, the decision also deleted the stipulations of "the parties concerned disagree with the handling of industrial and commercial administrative departments and the decision to institute administrative proceedings", because this can be carried out in accordance with the provisions of the administrative procedure law of the People's Republic of China, and the trademark law can no longer be specified.

　　 Clearly examining the time limit, trademark registration no longer "marathon"

According to the data provided by the Trademark Bureau of the State Administration for Industry and commerce, as of the first half of 2013, the cumulative application volume and cumulative registration volume of trademarks in China were 12 million 210 thousand and 8 million 174 thousand, respectively, with 6 million 808 thousand registered trademarks, ranking first in the world.

Trademark application " Marathon "Before 2008, many enterprises had a lot of headaches. The period of Trademark Review and trial has reached an average of more than 30 months, the longest being seven or eight years. The problem of backlog of trademark examination is outstanding, which has aroused strong concern from all walks of life.

In June 2008, the State Council promulgated the outline of the national intellectual property strategy, and proposed to improve the efficiency of Trademark Review and shorten the period of trademark review. SAIC has also established the goal of solving the backlog of trademark censorship for three years and reaching the international level in five years. In the 30th Anniversary Symposium on the promulgation of the trademark law last August, the head of the State Administration for Industry and Commerce said that the backlog of trademark inspection in China has been satisfactorily resolved. The registration period for trademark registration has been kept within 10 months, and the trademark objection review cycle has been shortened to less than 20 months. The examination period for commercial certification examination is controlled within 18 months.

Considering that the time limit prescribed by law is practical, the decision refers to the average time limit for trademark cases in practice. It stipulates that the time limit for trademark registration to apply for registration is 9 months, and the time limit for examination of objections is 12 months. The time limit for trademark review and Adjudication Board to revoke an application without notice is 9 months, and the time limit for deciding whether to reconsider the Trademark Office's objection and registration is 12 months. If it is necessary to extend the case in special circumstances, it can be extended for 3 months or 6 months with the approval of the administrative department of industry and commerce under the State Council. At the same time, the time limit for the invalidation of trademarks and the time limit for examination of revocation are also stipulated.

A clear definition of the time limit will be applied to the examination efficiency of trademark application, objection, revocation, invalidation and other procedures, plus "insurance", and the application of trademark does not need to run "marathon" anymore, Li Shunde commented.