How to write a legal opinion on trademark infringement
Guangdong Company A:
Our firm is entrusted by your company to assign our lawyer to assist your company in your alleged infringement of Guizhou Company B. The company owns the trademark rights. If your company plans to carry out related rights protection matters, the following legal opinions are issued for reference:
1. Basic facts
According to the information provided by your company, on July 14, 2004, your company obtained the "XXXX" trademark registration certificate with the approval of the Trademark Office of the State Administration for Industry and Commerce. As a large distributor that has been selling imported XXXX in southern Guangdong for many years, your company has widely publicized "XXXX". Guizhou Company B is a limited liability company established on May 2, 2012, mainly engaged in XXXX sales. The imported XXXX brand sold by your company is also sold. Company B in Guizhou has a website and has "XXXX" marked in a prominent position on the website in a more eye-catching font.
2. Legal analysis
Trademarks and corporate names are commercial identifiers that distinguish different Logo of a business entity. A trademark is a sign that distinguishes the source of different goods or services, and a company name is a sign that distinguishes different market entities. It consists of administrative division, trade name, industry or business characteristics, and organizational form. Among them, the trade name is the most important sign that distinguishes different companies.
(1) Regarding Company B’s alleged infringement of your company’s corporate name and trade name
Enterprise names and trade names are protected by law, but they must have a certain market reputation and be known to the relevant public (that is, they have strong identification and can be used between different enterprises) distinction), that is, "famousness." There are certain objective criteria for judging "notability": the size of the enterprise, its profitability, the duration, extent and scope of advertising, etc. At the same time, what is prohibited in Article 6 of my country's "Enterprise Name Registration Management Regulations" is the use of the same or similar font size as others in the same industry in the same administrative region. As for the names of enterprises in the same industry in different administrative regions, can their font sizes be the same? The question is not expressly prohibited.
Due to the differences between your company and Guizhou Company B, The names have been legally registered, have legal origins, and belong to different provincial administrative jurisdictions. Therefore, if you request a court or administrative agency to determine that Company B has infringed on your company's right to name and trade name, thereby constituting unfair competition, you must prove that your company has a high reputation both regionally and in the industry, and that Guizhou Company B has subjective There is intentional confusion or free-riding malicious intent, and objectively misunderstanding the public.
(2) Regarding Guizhou Company B’s suspected OfficeInfringement of certain trademarks
(1) Suspected of constituting Trademark infringement
According to the "Trademark Law of the People's Republic of China" Article 58 and Article 1 of the Supreme People's Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Trademarks" stipulate that words that are identical or similar to others' registered trademarks shall be used as the company's trade name on the same or similar goods. Prominent use that is likely to cause misunderstanding by the relevant public is an infringement of the exclusive right to register a trademark of others. According to this provision, Guizhou Company B has the necessary elements to infringe upon your company’s exclusive right to use your trademark: 1. Register “XXXX” as the company’s trade name, and your company’s trademark was registered first, and Guizhou Company B’s trade name was registered first Next; 2. Use "XXXX" prominently in business areas similar to your company's, including service packaging, advertising, exhibitions and other business activities. For example, Company B separates the font size of "XXXX" from the company name and places it in a prominent position on its website; 3. It easily causes the relevant public to mistakenly believe that Guizhou Company B and your company are related enterprises, and the relevant public's The scope is not limited to consumers purchasing directly.
(2) Suspected of unfair competition
"State Administration for Industry and Commerce on Resolving Trademarks and Enterprise Names" Article 4 of the Opinions on Certain Issues in the Trademark (hereinafter referred to as the "Opinions") stipulates: "The words in the trademark and the font size in the enterprise name are the same or similar, causing confusion (including confusion) to others as to the source of the market entity and its goods or services. possibility), thereby constituting unfair competition, it shall be stopped in accordance with the law." According to the above relevant provisions, the following conditions are met for determining that Guizhou Company B is unfairly competing: 1. There is a competitive relationship between the two parties; 2. Guizhou Company B has violated the " The principle provisions of Article 2 of the Anti-Unfair Competition Law; 3. Cause misunderstanding and confusion among the relevant public, including the possibility of confusion. Regarding the determination of confusion, the court will consider the following factors: the channels and methods of product sales, both partiesThe degree of similarity of the goods being sold, the degree of attention of consumers when purchasing, whether there is evidence to prove that actual confusion has been caused, and whether there is intention to exploit or damage the goodwill of others, etc.
In summary, Guizhou Company B will transfer your company’s The registered trademark words are used as the font size in the company name and are used prominently on the same or similar goods and services, which creates the possibility of misleading the public and is suspected of constituting both trademark infringement and unfair competition (i.e. infringement of trademark exclusive rights and unfair competition infringement) ).
3. Relevant legal advice
Your company can request the industrial and commercial administration department for processing, or you can directly contact Prosecution in the People's Court. If administrative investigation and handling procedures are applied, the cost of rights protection is relatively lower than litigation; if judicial litigation procedures are applied, you can choose to file one infringement lawsuit or file two infringement lawsuits at the same time and demand compensation.
The above legal opinions are for reference only.
If readers need legal help, welcome to Legal Saviours.com for legal advice.
No comments yet. Say something...