The protection of well-known trademarks in various countries is generally achieved by confirming their exclusive rights. The protection measures are different and can generally be divided into relative protection (RelativeProteedon) and absolute protection ( AbsoluteprotectionLawpanel) two types.
1. Relative protection of well-known trademarks
The relative protection of well-known trademarks refers to the scope of similar goods Protect the exclusive rights of well-known trademarks.
As stipulated in the French Trademark Law, trademark registration does not prevent others from using the same trademark on different types of goods. It also stipulates that all well-known trademarks that have not been registered can become the same trademark. or similar obstacles to obtaining registration of other trademarks.
However, France has implemented relatively extensive protection for well-known trademarks in specific judgments. The basis of its argument is that if the infringed trademark is a well-known trademark, if the well-known trademark Being counterfeitly used on different products will cause consumers to mistake these products for new products of the well-known trademark owner and cause confusion. Therefore, counterfeit use of a well-known trademark on different goods is also an infringement and can be prosecuted. However, this expanded protection has a certain limit, that is, it is limited to goods that are enough to cause confusion among consumers. If the two goods are unrelated and will not cause confusion at all, it cannot be called infringement.
Fundamentally speaking, France still implements relative protection for well-known trademarks. For example, the French Supreme Court once required ** Toyo Industrial Company to indicate "automobile" when using the "Mazda" trademark to distinguish it from the **Thorn Electric Company's "Mazda" trademark of the same name.
Germany’s protection of well-known trademarks is also limited to “the same goods and similar goods”. Whether the well-known trademark has been infringed and whether the trademark is protected should be decided by the two trademarks. The degree of similarity and whether the goods using the trademark are identical or similar shall be judged. For the use of well-known trademarks,For completely different goods, German trademark law imposes no restrictions.
2. Absolute protection of well-known trademarks
The absolute protection of well-known trademarks refers to what is prohibited If a product uses someone else's well-known trademark, its scope of protection is wider than the scope of relative protection, and the exclusive right to use a well-known trademark has absolute effect.
As stipulated by U.S. law. Any unregistered trademark used on similar or completely different goods constitutes an infringement of trademark rights. For example, the famous photographic equipment trademark "Kodak" is used on bicycles or lighters; the famous aperitif trademark "Dubonnet" (produced by Cadbury & Co.) is used For women's shoes, the famous cigarette trademarks "Lucky Strike" and "Camel" are not allowed to be used for chocolate or candies, even though the two categories of products are completely different.
The protection of well-known trademarks in the Netherlands, Belgium and Luxembourg is not limited to similar products. For example, the automobile trademark "Chevrolet" is used for watches, The use of the cigarette trademark "Fuyun Brand" in perfume constitutes infringement.
In addition, many economically developed countries such as Tong*li, Switzerland, the United Kingdom, and Japan implement absolute protection for well-known trademarks. For example, the Tokyo District Court of Japan once ruled to prohibit the use of the camera trademark "Yashica" in cosmetics. The United Kingdom stipulates that well-known trademark owners are allowed to apply to register well-known trademarks for products outside the scope of their business in order to prevent others from fraudulent use.
The practice of "free riding" on well-known trademarks is also considered to be an infringement of well-known trademarks. For example, the trademark owner of the British gastric medicine "Bisurated" accused others of printing the same prescription word as "Bisurated" in the instructions of the gastric medicine. Although the "Bisurated" trademark was not directly used, it was stated or implied that its manufacturing method could be the same as "Bisurated". "The products are comparable. The British court found that the accused's conduct was an infringement. Any text such as "The quality of our products is the same as that of products with a certain trademark, but our prices are cheaper. If you don't believe it, you can get a refund based on the price" will be considered to infringe on the rights of others.
The United States strictly prohibits the practice of selling goods that contain other people's names and trade names to cause the public to mistakenly believe that the goods are products of other people or other people's trade names. It is also prohibited to use "Copy" (imitation), "Reproduction";
Germany prohibits comparative advertising of well-known trademarks.
France, Belgium, Switzerland and Tong*Li and other countries prohibit direct, indirect or implicit comparative advertising of well-known trademarks.
Issues related to the protection of well-known trademarks
1. Determination of popularity
Using the same or similar trademark registered by others on the same or similar goods in accordance with the trademark laws of various countries constitutes trademark infringement, and the trademark owner has the right to request protection ; and require the infringer to bear the liability for compensation; if the registered trademark is used on non-competitive goods, it is an indirect infringement of the trademark, and the trademark owner can only prevent it, and only in countries that provide absolute protection for well-known trademarks , the right holder of a well-known trademark can be pursued through litigation.
The requirement for a well-known trademark lies in its high popularity, but to what extent it must be well-known before it can be listed as a well-known trademark, regulations vary between countries. Quite a difference. In most countries, the standard for determining infringement of well-known trademarks is to cause consumers to be confused about the source and origin of the goods, diluting the distinctiveness of the trademark and weakening its appeal.
According to German regulations, trademarks subject to expanded protection of well-known trademarks must be trademarks that have acquired exclusive and absolute status in commercial activities. For example, a German court refused to grant expanded protection to the "Triumph" trademark on the grounds that this trademark has gained a certain popularity when used on women's products, but the use of the trademark on typewriters and cars does not constitute a well-known trademark: they believed that the trademark The standard for determining popularity does not lie in how wide the spread space is, nor how long it is used, but only in the effectiveness of publicity. A highly famous trademark should be a magical word that is enough to make consumers think of it immediately. to a certain product.
Belgium, the Netherlands, Switzerland and other countries divide well-known trademarks into well-known trademarks protected by the Paris Convention and highly famous trademarks, and the latter are protected It is absolutely effective. France believes that this classification is unclear and that the court should determine whether a trademark is famous and determine the scope of its expanded protection based on its popularity in other countries. In other words, popularity in the country should not be used as the criterion.
2. The secondary meaning of trademarks and the protection of well-known trademarks
Many countries refuse to register trademarks with product descriptionsTrademarks that are gender-specific and trademarks that use place or person names as trademarks shall be registered. However, many companies tend to like the original meaning of trademark words and use this type of trademark. Once such trademarks are counterfeited, it is difficult to have any protective measures.
In order to prevent the specificity of such trademarks from being diluted, the U.S. court stipulated that only when the trademark owner of such a trademark proves that its expression method has lost its original meaning and has a new meaning, Only when the child meaning or secondary meaning is enough to represent the source of the goods, such trademarks can obtain the necessary protection. This principle is the first of its kind in the UK. British watches with the trademark "Pessendede" are exported to Turkey. This word means "guarantee" in Turkish and is a descriptive word. However, the trademark owner has actually used the "pessendede" trademark for a long time and made it a high-quality product. ’s logo and still obtained the exclusive rights to this Turkish trademark.
The reasons why the United States adopts the principle of secondary meaning are as follows:
a. The trademark name has lost its original meaning.
b. It is the first and exclusive use of the trademark owner
c. Consumers have recognized it As a sign representing high-quality goods,
d. The protection given to trademark owners is to prevent others from "free rides",
e. It has a long period of use, strong advertising effectiveness, large sales volume, and has become distinctive and can continue to be used exclusively.
In addition, if a trademark requested for protection based on the secondary principle is not registered, the trademark owner should prove that others have used it unfairly or fraudulently.
France, in accordance with the Paris Convention, recognizes that non-distinctive trademarks can become distinctive due to long-term use and high reputation. In other words, a well-known trademark can make up for its lack of distinctiveness because of its fame and good reputation. This is also the special effect of well-known trademarks.
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