This case involves the intellectual property protection issues of new services such as multimedia messaging that have emerged in the Internet era. MMS service operators should avoid other people's registered trademarks in the process of providing services, otherwise they will bear infringement liability.
The English name of MMS is MMS, which is the abbreviation of Multimedia Messaging Service, which means multimedia information service and is usually called MMS. Its biggest feature is its support for multimedia functions. Multimedia information allows full-featured content and information to be delivered. This information includes multimedia information such as images, audio information, video information, data, and text. It can support multiple high-speed data services such as voice, Internet browsing, email, and conference television. With the support of GPRS network, video clips, pictures, sounds and text are transmitted using WAP wireless application protocol as the carrier. The multimedia information service can realize instant end-to-end transmission of multimedia information from mobile phones, from mobile terminals to the Internet, or from the Internet to mobile terminals.
In recent years, with the widespread application of MMS technology, there have been an increasing number of cases involving intellectual property infringement. The special transmission method of MMS service makes people often ignore the nature of the service provided by the service provider. Previously, the controversy caused by MMS was mainly concentrated in the field of copyright. In this case, Caixiu Company marked the "Caixiu" logo on its webpage providing MMS services, infringing Jinshan Company's exclusive right to register the trademark "Caixiu".
Basic facts of the case
On July 9, 2003, Jinshan Company engaged in the 38th category of service projects An application was made to register the "Caixiu" trademark. On May 14, 2005, Jinshan Company obtained the registration of the "Caixiu" trademark. The approved services are information transmission, mobile phone communications, telecommunications information, electronic bulletin board services (communication services), email, etc.
After Jinshan Company discovered that Caixiu Company had used the information provided by it without authorizationThe "Caixiu" logo is used on MMS downloads, WAP entertainment and other services, and the "Caixiu" logo is marked in a prominent position on promotional materials. Therefore, a lawsuit was filed with the Beijing No. 1 Intermediate People's Court, claiming that the company had infringed on its exclusive rights to the registered trademark "Caixiu".
Caixiu Company stated that on May 12, 2003, the Shenzhen Municipal Administration for Industry and Commerce approved the corporate name of the defendant Caixiu Company. On June 10, 2003, Beijing 3721 Technology Co., Ltd. issued the "Network Real-name Service Certificate" to Caixiu Company. According to the records in the certificate, Caixiu Company's online real name was "Caixiu". On June 30, 2003, Caixiu Company was officially established. These behaviors all occurred before Jinshan Company applied for registration of the "Caixiu" trademark. Caixiu Company has also applied to register the "Caixiu" trademark, which has not been rejected so far. The company has fulfilled its reasonable duty of care, so its use of the "Caixiu" logo is a reasonable use and does not constitute infringement.
Beijing No. 1 Intermediate People's Court determined that according to the provisions of my country's Trademark Law, an approved and registered trademark shall have exclusive rights to the goods or services for which it is approved for use. Without the permission of the trademark owner, others may not use a trademark that is identical or similar to its registered trademark on the same goods or similar goods or services. Jinshan Company has registered the “Caixiu” trademark in Category 39 telecommunications information, information transmission and other related services, and it enjoys the exclusive right to the registered trademark in accordance with the law. Without Kingsoft’s permission, others may not use the “Caixiu” trademark on the same or similar services.
Caixiu Company's corporate name registration date is earlier than the time when Jinshan Company applied for the "Caixiu" trademark registration, and it has the right to legally regulate the use of its corporate name. However, in this case, the "Caixiu" logo used by Caixiu Company in the upper left corner of its webpage is parallel to the content column of the company's webpage and has a larger font. The relevant public can easily notice this logo and understand it as Caixiu Company's service trademark. Caixiu Company's behavior of simplifying its corporate name to "Caixiu" and using it prominently cannot be regarded as its legal use of the corporate name. The information published by Caixiu Company on its company webpage is stored in the computer in the form of binary coded information and transmitted through the Internet. Therefore, the above information published by Caixiu Company belongs to information transmission. Caixiu Company used the same trademark as Jinshan Company's "Caixiu" trademark on the same services. Its behavior infringed Jinshan Company's exclusive right to register trademarks and should bear corresponding civil liability.
Focus of the case
1. Caixiu Company used " Is the "Cai Xiu" logo a use of a trademark?
PassThe traditional way of using product trademarks is to mark them on the product packaging, product manuals or other attachments. Service trademarks are mainly marked on service venues, service signs, service tools and advertising supplies. With the advent of the Internet information age, many new products and services have been launched one after another, the scope of trademark use has gradually expanded, and the methods of use have also continued to increase.
Based on the above situation, the Beijing Higher People's Court issued the "Answers to Several Issues Concerning the Trial of Trademark Civil Dispute Cases" on March 9, 2006 (hereinafter referred to as "Questions and Answers") clarifies the use of trademarks: In commercial activities, the use of trademark logos to indicate the source of goods so that the relevant public can distinguish different market entities that provide goods are all ways of using trademarks. In addition to the ways of using trademarks listed in Article 3 of the Implementation Regulations of the Trademark Law, the use of trademark logos on two-dimensional or three-dimensional media such as audio and video, electronic media, and the Internet can make the relevant public aware of the trademark, the goods marked by the trademark, and the product providers. All I know is the use of trademarks.
Based on this case, Caixiu Company uses the "Caixiu" logo on the MMS download and WAP entertainment services it provides, which falls under the above-mentioned "use of trademark logos on online media" ". At the same time, it is precisely because of the "Caixiu" logo that appears in the upper right corner of the webpage that the relevant public understands the logo as the trademark of this service and triggers an association with the service provider. It also belongs to the use of trademarks listed in the "Q&A".
2. Are the MMS and WAP entertainment services provided by Caixiu Company considered information transmission?
The information published by Caixiu Company on its company webpage is stored in computers in the form of binary coded information and transmitted through the Internet. Therefore, the above information published by Caixiu Company belongs to telecommunications information, and its act of providing and transmitting relevant information on the Internet is Information transfer.
The services approved for use by Jinshan Company’s registered trademark No. 3624413 "Caixiu" are 38 categories of information transmission, mobile phone communications, telecommunications information, and electronic bulletin boards Services (communication services), e-mail, computer-assisted information and image transmission, computer-assisted information and image transmission, computer terminal communications, provision of telecommunications connection services with global computer networks, telecommunications information.
Therefore, Caixiu Company uses the "Caixiu" logo on services that have the same scope of application as Jinshan Company's registered trademark "Caixiu".
3. Whether Caixiu Company has fulfilled its duty of care and whether it can be exempted from infringementResponsibility?
First of all, the trademark search procedure is relatively simple and easy. Caixiu Company can find out through online inquiry that Jinshan Company is involved in Class 38 information transmission, mobile phone communications, Applications for registration of the "Caixiu" trademark have been filed in telecommunications and information services. Moreover, Caixiu Company also applied to register the "Caixiu" trademark in December 2003. Before the current trademark application process is carried out, in order to avoid the rejection of the trademark application, the applicant needs to search for already registered trademarks and previously applied trademarks. Therefore, Caixiu Company can fully understand through the above channels that the "Caixiu" trademark has been applied for registration by Jinshan Company, and should avoid the prior trademark rights to avoid trademark infringement.
Secondly, my country's current trademark law regards the principle of infringement liability as the "strict liability principle", also known as the "no-fault principle" or the "no-fault principle". The perpetrator's subjective factors are regarded as the constituent elements of whether there is an infringement. In this case, as long as Caixiu Company uses the "Caixiu" logo alone in the upper left corner of its web page, it should be deemed an infringement. As for whether the company has subjective malice and whether it has fulfilled its due diligence obligations, it is not an essential factor in determining whether it is infringement. .
Case Enlightenment
In this case, Caixiu Company provided MMS services and WAP entertainment services The use of the "Caixiu" logo on the website was judged by the Beijing No. 1 Intermediate People's Court to constitute an infringement and ordered it to bear civil liability for compensation. This case serves as a warning to many IT operators. That is, before using a distinctive service mark, you should fully understand the power status of the mark. In the "Classification Table of Similar Goods and Services" formulated by the State Administration for Industry and Commerce, all services currently provided by liver companies are covered, that is, there are corresponding classifications and service items. Enterprises should accurately identify the services they provide. They should ask a professional lawyer or go to the Trademark Office in person to inquire whether the logo to be used in the category of services they provide is a registered trademark or has been filed by others before. trademark application. If you find that there is a prior trademark registration application or trademark right, you should avoid using the logo. This is to prevent the logo from being stopped from being used if the court decides it constitutes infringement, causing unnecessary economic losses to the enterprise.
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