With the rapid popularization of mass media and the globalization of knowledge economy, trademarks, as an important part of intellectual property rights, are the product of the development of market economy. Their value as intangible assets of enterprises is increasing day by day, and there are more and more trademark infringement cases. Therefore, the determination of trademark infringement is the core of the trademark right system, and correctly grasping the determination of trademark infringement is the balance point of reasonably protecting the interests of the exclusive right holder of a registered trademark and the public interests. At present, China has failed to establish a scientific and perfect trademark protection system in essence, and there is no effective and unified standard for the determination of trademark infringement. Therefore, in practice, the determination of trademark infringement depends on the judge's discretion to a certain extent, which is likely to lead to judicial injustice. As an individual enterprise, although it can't advance the legal process, it can turn the corner by knowing and using the law well.

First, the manifestations of trademark infringement

There are many forms of trademark infringement in practice. In order to facilitate the operation, it is possible and necessary to legally fix the form of trademark infringement. Like most countries, China's trademark law also adopts a legislative system that enumerates the forms of trademark infringement. According to Article 52 of China's Trademark Law, trademark infringement can be divided into the following categories:

1, use infringement

The so-called infringement refers to the use of the same or similar trademark on the same or similar goods without the consent of the trademark registrant. The most direct purpose of trademark registration is to protect enterprise trademarks and prevent others from using them at will. Therefore, the use of another person's registered trademark without consent, whether it is wrong or not, will constitute an infringement of the exclusive right to use another person's registered trademark. In practice, the use of infringement is the most common and the most difficult way to investigate such infringement.

2. Sales infringement

Sales infringement refers to the act of selling goods that infringe on the exclusive right to use registered trademarks. Distributor is the intermediary between commodity producers and consumers, and has the obligation to provide qualified commodities to consumers. If the distributor provides consumers with goods that infringe on the exclusive right to use a registered trademark of others, it is undoubtedly helping the trademark infringer to achieve his own purpose and damaging the rights and interests of trademark registrants and consumers, so it is also stipulated as trademark infringement. Sales infringement, like use infringement, does not require dealers to be at fault, as long as there is infringement, they should bear the responsibility.

3. Reverse counterfeiting and infringement

Reverse counterfeiting infringement refers to the act of changing the registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark back on the market. In reverse counterfeiting, the actor is not the end user of the goods, which artificially separates the proper relationship between the trademark and the goods, deprives others of the opportunity to expand their reputation through the further circulation of the registered trademark, affects consumers' cognition of the trademark registrant, leads to the incomplete realization of the economic interests of the trademark registrant, and damages the exclusive right of the trademark owner to its registered trademark, which belongs to trademark infringement.

4. Other infringements

In practice, there are countless forms of trademark infringement, except for the above three typical infringement methods, such as using the same or similar words of other people's registered trademarks as enterprise names.

Second, the identification process of trademark infringement

1 to determine the scope of the exclusive right to use a registered trademark.

At present, registered trademarks in China are divided into 45 categories, and the same registered trademark is allowed to be registered in different categories. Therefore, any use of the same registered trademark will not constitute infringement.

2. Determine the specific object of the alleged infringement.

After trademark infringement, the obligee often first understands the circulation of the infringing products in the market, and then pays attention to the source of the infringing products. It is impossible to determine the object of infringement, and there is no way to protect rights. Therefore, it is an extremely important step to accurately lock the infringer.

3. Similarity comparison

Compare the accused infringing object with the registered trademark and the goods approved for use by the registered trademark to determine whether the accused infringing trademark is the same or similar, and whether the goods used by the accused infringing trademark belong to the same category or similar.

Among them, we should pay special attention to the judgment of trademark approximation and similar goods:

First of all, to judge the similarity of trademarks, we must judge whether there is similarity from the font, pronunciation, meaning, composition and color of graphics, or the overall structure of various elements. When judging the similarity of a trademark, we should also pay attention to the general concern of the relevant public, the comparison of the whole or main parts of the trademark, and the salience and popularity of the registered trademark. We should also pay attention to separate comparisons when comparing. In the process of comparison, whether consumers will confuse or mistake the source of products is also a very important issue to judge whether trademarks are similar, which should be paid full attention to.

Secondly, it is the judgment of similar goods. Similar commodities refer to the same or similar commodities in terms of functions, uses, main raw materials, production departments, sales channels, sales places and consumers. In practice, judging similar goods should comprehensively consider the following factors:

1. Functions and uses of commodities;

Second, raw materials and components of commodities;

Third, the sales channels and places of goods;

Fourth, the relationship between goods and parts;

Fifth, the producers, consumers and consumption habits of commodities, as well as other related factors that affect the judgment of similar commodities.

In a word, the identification of commodity similarity should consider the above factors comprehensively, but not all of them.

Third, the trademark infringement disposal strategy

The determination of trademark infringement is only a prelude to the action of safeguarding rights, and how to properly handle trademark disputes is the ultimate goal. In the face of trademark infringement disputes, enterprises should pay attention to the following points:

1, looking for legal basis

In trademark infringement cases, after determining the prosecution point, we should find the relevant legal basis. The so-called legal basis here should be detailed to the basic information of registered trademarks, the registration of the defendant's or plaintiff's trademarks, similar to the relevant provisions of the list of goods and services, and collect the relevant provisions of the Trademark Review Guide when necessary. For this piece, the more fully prepared, the more targeted the prosecution or response.

2. Prepare evidence materials

After finding the relevant legal basis, the next step is the preparation of evidence materials. In legal practice, evidence is the most powerful explanation of the truth, and the preparation of evidence materials should be comprehensively selected and determined around the possible controversial focus. When collecting evidence, we must give full consideration to all the evidence involved. When sorting out evidence, we should take the content to be proved as the main line, and group and number the evidence according to the relationship between legal relationship, litigation request and reason.

Common evidences in trademark infringement litigation include: evidence to prove the qualifications of plaintiff and defendant; Prove that the plaintiff legally holds the trademark and its reputation and market value or that the defendant has the legal right to use the trademark; Evidence that the product name and product packaging of the defendant are similar to those of the plaintiff, or that the goods used by the defendant are different or similar to those of the plaintiff, and the trademarks used are different or similar to those of the plaintiff; For the plaintiff, the evidence that the defendant's infringement or unfair competition behavior caused the plaintiff to lose sales of products should also be submitted; Evidence needed for other cases.

Bajie reminded that the preparation of evidence materials should be as full as possible, which is more beneficial to the whole lawsuit and better invites teams with professional experience to help sort it out.

trademark infringement