1. How to determine trademark infringement
1. Damage will occur or is about to occur Damage consequences, that is, the infringement has caused damage to the trademark owner or is about to cause damage, which can be manifested as a decrease in product sales, a decrease in profits, or a decrease in trademark reputation.
2. Illegal behavior, that is, the perpetrator objectively exercises the rights enjoyed by the trademark owner in accordance with the law without permission and without other legal basis.
3. The damage consequences are causally related to the illegal behavior, that is, the damage consequences are directly caused by the illegal behavior. The fourth is the subjective state, including fault and no fault.
4. Generally speaking, if an actor illegally uses a trademark that is the same as or similar to a registered trademark, or forges or creates without authorization the logo of another person’s registered trademark, it is a reverse counterfeit registration. When determining whether a trademark infringement is infringement, the subjective fault of the perpetrator is the essential element; for the act of selling goods counterfeiting a registered trademark, the subjective fault of the perpetrator is not essential when determining whether the trademark infringement is infringement.
2. According to the provisions of my country’s Trademark Law, specific acts that infringe upon trademark rights include the following:
First, the act of using a trademark that is identical or similar to a registered trademark on the same or similar goods without the permission of the trademark registrant is also called use infringement.
The second is the act of selling goods that infringe the exclusive rights of a registered trademark, which is a trademark infringement in the circulation field, also known as sales infringement.
The third is the act of forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks, also known as trademark infringement.
Fourth, without the consent of the trademark registrant,The act of changing a registered trademark and putting the goods with the changed trademark back on the market is called reverse counterfeiting abroad.
Fifth, acts that cause other damage to the exclusive right to use registered trademarks of others.
2. Identification of "similar trademarks"
The identification of "similar trademarks" should usually be considered from two aspects:
1. First, whether the goods or services used by the two trademarks are the same or similar. ;
The second is whether the main parts of the logos of the two trademarks are similar. The specific determination uses the general attention of ordinary consumers as the subjective standard of judgment, and adopts a method that combines overall comparison with comparison of significant parts of the trademark to make a comprehensive judgment. In practice, trademarks are often examined based on three elements: sound, shape, and meaning. That is, whether the pronunciation is the same; whether the appearance is similar, whether it may cause ordinary consumers to misunderstand intuitively; whether the meaning is the same, etc. If more than one factor is the same and may cause confusion, it can basically be determined as a similar trademark. For example, the "cool kid" and "queer" involved in this case, if a comprehensive judgment is made on the two, I personally think it can be determined as similar. trademark.
2. The so-called "similar goods" refer to goods that are related or have specific connections in terms of functions, uses, consumption objects, sales channels, etc.; "similar services" ” refers to services that are related in terms of the purpose, method, object, etc. of the service, or have a specific connection. Our country adopts the Nice Agreement and considers the purpose, users, functions, sales channels, sales habits and other comprehensive judgments of the goods or services. For example, "Kool Kid" and "Queer" involved in this case are both trademarks of non-alcoholic beverage products, and the products' uses, users, functions, sales channels, sales habits, etc. are also similar.
3. The so-called "other damaging behaviors", according to the provisions of the Trademark Law Implementation Regulations and judicial interpretations, include:
First, using words, graphics, etc. that are identical or similar to others’ registered trademarks as product names or product decoration on the same or similar products, which is enough to cause misunderstanding;
The second is to deliberately provide warehousing, transportation, mailing, concealment and other convenient conditions for infringement of the exclusive rights of others' registered trademarks;
The third is to will be with himWords that are identical or similar to a person’s registered trademark are prominently used as the company’s trade name on the same or similar goods, which is likely to cause misunderstanding by the relevant public;
Fourth is copying , imitate or translate a well-known trademark registered by others or use the main part as a trademark on different or dissimilar goods, misleading the public, causing the interests of the well-known trademark registrant to be damaged; fifthly, using the same trademark as that registered by others Or similar words are registered as domain names, and e-commerce transactions of related goods are conducted through the domain names, which may easily cause misunderstandings among the relevant public.
5. Trademark infringement has diverse forms. The judgment must be based on specific behaviors and in accordance with legal provisions, using a comprehensive analysis of the constituent elements and identification factors of trademark infringement. Only then can a correct determination be made.
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