Trademark Disputes: A Shortcut For Identifying Well-Known Trademarks

"Skillfully using trademark (trademark, trademark registration, trademark inquiry, China Trademark network, trademark registration enquiry) disputes can also identify well-known trademarks". Recently, Liao Junming, member of the China Intellectual Property Research Association, Beijing red emblem international intellectual property agency and Guangdong red emblem trademark agency, put forward opinions on the "seminar on effective handling of trademark disputes and brand strategy" organized by the State Intellectual Property Office.

It is often ignored by experts invited to participate in trademark disputes that trademark disputes are not always bad. For example, before the implementation of the new trademark law and the relevant judicial interpretations, the evaluation of well-known trademarks of the State Administration for Industry and Commerce has been identified for all enterprises in the country, not only for each Province, but also to the State Administration for Industry and commerce.

But now, if conditions are available, skillful use of trademark disputes can identify a well-known trademark in a relatively short time and in a relatively short period of time.

Liao Junming said that according to the existing laws, regulations, regulations and the Supreme People's court's relevant judicial interpretation, the legal way for enterprises to get the recognition of "well-known trademarks" is in addition to the direct application to the State Administration for Industry and commerce's trademark office to identify well-known trademarks. There are four following kinds: one is to apply for trademark recognition to well-known trademarks in the trademark objection procedure; two, in the trademark dispute procedure, it applies to the Trademark Review and Adjudication Board of the State Administration for Industry and commerce to apply for the recognition of well-known trademarks; three, in the process of trademark infringement administrative handling, it applies to the industrial and commercial administrative organs to apply for the recognition of well-known trademarks; four, it applies to the people's courts to identify well-known trademarks in the civil procedure of trademark infringement.

According to statistics, only in 2004, the Trademark Office of the General Administration of industry and Commerce and the Trademark Review and Adjudication Board recognized 153 well-known trademarks according to law. Among them, the Trademark Office identified 116 pieces of "Goldlion" and "iron generals" in trademark management cases, and identified 14 pieces in the case of trademark disagreement. 1 of them were identified in the international trademark registration objection case, and the Trademark Review and Adjudication Board identified 22 pieces of Montagut and wife in trademark dispute cases.

According to the report, the court system has also identified dozens of well-known trademarks such as "Shu Fu Jia", "Li Bang", "royal family", "Red Dragonfly" and "Joy Music" in the civil litigation ruling of trademark disputes in recent years.

Liao Junming pointed out that with the advent of the post WTO pition period, the international market economy competition will become more and more intense and complex. The role of well-known trademarks will also play an increasing role. It is a trend to identify well-known trademarks through trademark disputes.

But on the whole, many domestic enterprises are still blind.

Enterprises neglect to identify well-known trademarks through trademark disputes, especially through judicial procedures, ignoring the advantages and shortcuts of identifying well-known trademarks through litigation.

This contrasts sharply with the fact that after the introduction of new laws and regulations by foreign enterprises, especially those from the United States, Japan and Britain, most trademark owners not only take the opportunity to put forward applications and requirements for identifying well-known trademarks in trademark dispute cases, but also adhere to the final ruling, whether in administrative or judicial proceedings, so that they do not stop at the end.

The effect of administration and judicature on the right of cognizance of well-known trademarks in practice has been disputed by Liao Junming, the focus of dispute between administration and judicature on the validity of the right of recognition of well-known trademarks.

Except for a few unregistered trademarks such as "little fat sheep" and "royal family", which have attracted the attention of the Trademark Office and the court as well known trademarks, the well-known trademark "21 gold Vita" identified by the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce has been revoked by the first intermediate court of Beijing, and the trademark "Joy Music" registered in different categories by the Yang Sen company of Xi'an and San Fang company in Guangdong Foshan has been challenged by different courts in the dispute.

Liao Junming believes that in the implementation of the dual cognizance mechanism of court recognition and administrative recognition, we have to face the conflict of cognizance between the two.

In fact, due to the exclusive expression of the "Interim Provisions on the recognition and management of well-known trademarks" promulgated in 1996, and the consistent strength of the administrative organs in China, the recognition right of well-known trademarks in the court is very unclear, and has not been implemented in practice before.

However, the tendentious conclusion of the "Expert Committee on protection of well-known trademarks" in the World Intellectual Property Organization (iwipo) argues that in view of the fact that a large number of trademark registration agencies do not have the full ability to evaluate whether a trademark is well-known or conclusive evidence, it is not necessary to give the trademark registrar the right to identify well-known trademarks.

When trying the case, the court should consider not only the evidence that is good for identifying the well-known trademark, but also the contrary evidence, which is more objective than the decision made by the administrative organ based only on one party's evidence.

However, the court finds that there is no inevitable conflict between the well-known trademark and the administrative recognition, and there is no need to completely replace the administrative recognition.

Under the newly established dual track system, administrative recognition can continue to exist and strengthen, but only in the administrative system.

In the process of adjudication, the results of administrative cognizance can be used as an appraisal conclusion issued by authoritative bodies, that is, one kind of evidence.

The court shall have the right to decide whether to adopt the result of administrative confirmation and whether to carry out judicial review without any obligation to accept the result of administrative confirmation in accordance with the evidence submitted by both parties in court.

The court shall have the right to make a direct decision on whether a trademark is well-known or not.

That is to say, in view of the well-known trademark's review and judicial review system, the Trademark Office and the court have different effects on the right to recognize well-known trademarks.

The Trademark Office's right to affirm shall not be final, but shall be reviewed by the trademark review board and judicial review by the people's court.

On the contrary, the intermediate and high court's right to determine a well-known trademark shall be final and effective after the judgment of first instance and second instance comes into effect, and the final ownership of a well-known trademark shall be determined.

This can fully reflect the general rule of the development of modern rule of law civilization.

China's recognition of well-known trademarks started late. Until 1985 when China joined the Paris convention, the trademark office began to identify some well-known trademarks at the request of enterprises.

China is also lagging behind in the legal provisions. Only in August 14, 1996, the State Administration for Industry and Commerce promulgated a "Provisional Regulations on the recognition and management of well-known trademarks".

In terms of China's history and current situation, the combination of administrative cognizance and judicial review can be regarded as the best choice.

The identification of well-known trademarks is the premise of protecting well-known trademarks, but how to determine whether a trademark is famous is a controversial issue.

Therefore, in view of China's current identification standards and accreditation bodies and identification methods, it is urgent to establish a complete and operational system for identifying well-known trademarks.

Liao Junming finally stressed.