What are the defense grounds for trademark and patent infringement
1. The plaintiff’s litigation subject is not qualified to defend
According to the "Several Laws Applicable to the Trial of Trademark Civil Disputes by the Supreme People's Court" According to the provisions of "Interpretation of Issues", the plaintiff in a trademark infringement lawsuit should be the owner or interested party of the registered trademark. Interested parties include the licensee of the registered trademark use license contract, the legal successor of the registered trademark property rights, etc. When the exclusive right to use a registered trademark is infringed, the licensee of the exclusive use license contract may file a lawsuit with the People's Court; the licensee of the exclusive use license contract may file a lawsuit jointly with the trademark registrant, or if the trademark registrant does not file a lawsuit. Under certain circumstances, the party may initiate a lawsuit on its own; the licensee of a general license contract may file a lawsuit if expressly authorized by the trademark registrant. Therefore, the plaintiff's subject should comply with the above provisions. If the plaintiff does not meet the above provisions, the defendant can raise the defense that the plaintiff's subject of litigation is unqualified.
2. Non-identical and non-similar defense
According to the provisions of the Trademark Law, without the trademark registrant license, in the same tradeUsing a trademark that is the same as or similar to the registered trademark on goods or similar goods; selling goods that infringe the exclusive rights of a registered trademark; changing the registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark back on the market; counterfeiting , Making other people’s registered trademark signs without authorization or selling counterfeit or unauthorized registered trademark signs; causing other damage to others’ exclusive rights to use registered trademarks; the above behaviors are all infringements of the exclusive rights to use registered trademarks. Therefore, the defendant should base its defense on the plaintiff’s specific claims. Here, we only use the claim of using a trademark that is identical or similar to the registered trademark on the same or similar goods without the permission of the trademark registrant as an example.
First determine the scope of exclusive rights for registered trademarks, It should be limited to the approved registered trademark and the approved products for use. It cannot be based on the trademark actually used by the owner of the registered trademark and the goods actually used by the trademark. Then determine the specific objects accused of infringement, firstly, the trademark accused of infringement, and secondly, the goods used by the trademark accused of infringement. Next, compare the object of alleged infringement with the registered trademark and the goods for which the registered trademark is used, determine whether the trademark for alleged infringement is the same or similar to the registered trademark, and whether the goods for which the alleged infringing trademark is used are the same as those for which the registered trademark is used. Verify whether the goods used are of the same type or similar. When judging similar trademarks, the so-called similarity needs to reach a level that is likely to cause confusion, that is, when the trademark is used on the same or similar goods as the goods for which the registered trademark is approved, ordinary consumers may have a wrong understanding of the source of the goods. Specific comparison methods of isolated observation, overall observation and key part observation should be used when comparing. After the above comparison, if it is concluded that the trademarks are not identical or similar or the products do not belong to the same kind of goods or similar goods, it can be determined that there is no infringement.
3. Defense of prior rights
"Trademark Law" stipulates that applying for trademark registration shall not damage the existing prior rights of others, nor shall it be used to preemptively register a trademark that has been used by others and has a certain influence by unfair means. Therefore, if the registered trademark is related to the alleged infringement If a person's legal rights (such as company name) conflict, he can use prior rights as a defense to claim that he does not constitute infringement.
4. Common name defense
The "Trademark Law" stipulates that a trademark registered with the common name of the product will not be registered (except for those that have acquired distinctive features through use and are easy to identify). Therefore, if a trademark is Even if the common name of a commodity is registered, the common name defense can still be considered as long as it meets the following characteristics: the registered trademark is a common name of the commodity by convention and is used in a wide range of regions; the common name has not acquired distinctiveness as a trademark in use; the common name Merely as part of a registered trademark, it cannot restrict others from using the common name of the product; the owner of a trademark containing a common name has no right to prevent others from using the common name as a component of the trademark.
5. Fair use defense
The Trademark Law stipulates that place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks. However, , except for place names with other meanings or as components of collective trademarks or certification marks; registered trademarks using place names will continue to be valid. According to the above regulations, trademarks containing place names above the county level are allowed to be registered but also restrict the trademark owner. Part of the rights, that is, it cannot restrict others' reasonable use of place names. As long as it does not cause confusion or misunderstanding among the relevant public, it does not constitute infringement.
6. Defense on the legal source of goods sold
"Trademark Law" stipulates that sales without knowing it is an infringement of registration For goods with exclusive rights to a trademark, if you can prove that you legally acquired the goods and identify the supplier, you will not be liable for compensation.
Therefore, if the plaintiff’s trademark meets the above conditions, The defendant may file a revocation application with the Trademark Review and Adjudication Board to deny the plaintiff’s trademark rights. Once the Trademark Review and Adjudication Board accepts the cancellation application, the defendant can apply to the court to suspend the trial accordingly, and attach a copy of the cancellation application and evidence. The court will decide whether to suspend the trial based on the reasons and evidence for the withdrawal application.
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