On June 25, 2007, with the approval of the Industrial and Commercial Bureau of a certain city, Li obtained an individual industrial and commercial household business License using the name of "Jianghai Mingyue Fishing Capital of a certain city" and engaged in Catering Services. In April 2009, Zhang, who is engaged in real estate development, obtained the exclusive rights to the Jianghai Mingyue trademark as a natural person with the approval of the Trademark Office of the State Administration for Industry and Commerce, and the approved goods (services) were restaurants and hotels. In June 2009, Zhang complained to the industrial and commercial authorities, claiming that Li's trade name "Jianghai Mingyue Fishing Capital" infringed on his exclusive right to register a trademark, and requested the industrial and commercial department to safeguard his legitimate rights and interests and cancel the trade name "Jianghai Mingyue Fishing Capital" used by Li. name.
Dispute
As to whether Li constitutes trademark infringement, the investigators have three different views.
The first view is that Li constitutes trademark infringement. The reason is: Li used a name with the same words as Zhang’s registered trademark on the same service, infringing Zhang’s trademark exclusive rights. According to Article 52(1) of the Trademark Law, any use of a trademark that is identical or similar to the registered trademark on the same or similar goods without the permission of the trademark registrant shall constitute an infringement of the exclusive right to use a registered trademark. Behavior. An operator's use of another person's registered trademark on the same or similar goods or services can easily cause confusion among consumers about goods or services from different sources. This behavior not only infringes on the exclusive rights of other people's registered trademarks, but also is not conducive to protecting consumers' rights. Legal rights such as the right to know and the right to choose. The trade name used by Li in catering services is the same as the registered trademark owned by Zhang, which constitutes trademark infringement as specified in Article 52 (1) of the Trademark Law.
The second view is that Li does not constitute trademark infringement. The reason is: Trademarks and business names are subject to different legal regulations and protections. The main function of a trademark is to enable the relevant public to identify the source of different goods or services and avoid confusion or misunderstanding of goods or services from different sources. The name of an enterprise is a symbol that distinguishes different market entities. It is composed of the administrative division where the enterprise is located, its trade name or operating characteristics, organizational form, etc. in accordance with the law. The trade name is the main symbol that distinguishes different enterprises. Trademarks and business names have different approval authorities and procedures. They are protected within the scope of relevant legal adjustments and do not interfere with each other. Therefore, Li does not constitute trademark infringement.
The third view also believes that Li does not constitute infringement, but for different reasons. The reason is: Although Li’s trade name is the same as that owned by Zhang,The registered trademarks have the same words and both belong to the catering industry. However, Li's business name was approved for registration as early as June 25, 2007, while Zhang obtained the exclusive right to trademark in April 2009. Li's legal prior rights should be protected, and Zhang did not use Jianghai Mingyue's registered trademark to engage in the restaurant service industry. Li's use of "Jianghai Mingyue Fishing Capital" in the company name to operate the catering industry will not make ordinary consumers If the person causes confusion or misunderstanding, it does not constitute trademark infringement.
The author agrees with the third view.
Analysis
According to the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Trademark Disputes "(Fa Interpretation [2002] No. 32) stipulates that if words that are the same or similar to others' registered trademarks 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, it is Acts that “cause other damage to others’ exclusive rights to use registered trademarks” are stipulated in Article 52 (5) of the Trademark Law. It can be seen that this type of trademark infringement must have the same or similar words, use on the same or similar goods or services, and easily cause misunderstanding among the relevant public. Specific to this case, to determine whether Li has infringed Zhang's registered trademark rights, a comprehensive judgment should be made based on the general attention of ordinary consumers and the above-mentioned legal provisions. In this case, Li’s trade name has the same words as all Zhang’s registered trademarks, and both belong to the catering industry. However, Zhang is not engaged in the catering service industry. Ordinary consumers will not associate the name of the restaurant operated by Li with Zhang’s. Trademark rights will be associated to avoid confusion or misidentification of the source of the service. Li's use of "Jianghai Mingyue Fishing Capital" in his company name to operate the catering industry will not cause confusion or misunderstanding among ordinary consumers, and does not constitute trademark infringement.
Inspiration
Since the revised Trademark Law in 2001 allowed natural persons to apply for trademark registration, It is becoming increasingly popular to apply for trademark registration in the name of a natural person. Some natural persons apply for registered trademarks not for their own use, but for transfer for profit or to obtain compensation for infringement. When accepting such complaints and reports, the industrial and commercial departments must clarify the facts of the case and make a comprehensive evaluation based on the subjective and objective elements of trademark infringement. They must protect the legitimate rights and interests of the trademark registrant and the interests of the relevant prior rights holders. Maintain normal market economic order.
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