Matters Needing Attention In Judicial Recognition Of Well-Known Trademarks

The twenty-second paragraph and second paragraph of the interpretation of several issues applicable to the trial of Trademark Civil Disputes shall be stipulated in accordance with the fourteenth provision of the trademark law.

Article fourteenth of the trademark law stipulates that the following factors should be considered in identifying well-known trademarks:

(1) the relevant public should

Awareness level;

(2) the duration of the use of the trademark;

(3) the duration, extent and geographical scope of any publicity work of the trademark;

(4) the trademark is a record of the protection of a well-known trademark;

(5) the

Other factors that are well known.

These 5 factors should be considered by the court that the well-known trademarks should be considered. However, this does not mean that in a specific case, it is necessary to have the ability to identify a well-known trademark at the same time. For example, "the trademark as a record of the protection of a well-known trademark" is obviously not the case of all commercial standards.

As to which factor plays a decisive role in the recognition of a well-known trademark, it should be judged by the court's comprehensive case.

The court finds that a well-known trademark is a judgment and recognition of a fact state.

In view of the fact that the 5 factors of the well-known trademark are stipulated in the trademark law are relatively principled, in order to facilitate the operation, we can further elaborate them in the judicial practice according to the regulations on identification and protection of well-known trademarks issued by the State Administration for Industry and Commerce in April 2003.

The "public awareness of the trademark" is the most important factor in identifying well-known trademarks. The other 4 factors stipulated in the trademark law can be used to prove the awareness of the public.

The key to apply this standard is to define the "relevant public".

Well known trademarks are different from well-known trademarks. This is because not all goods and services are sold and served by ordinary consumers, especially for certain commodities and services only for specific consumer groups. Therefore, the "relevant public" should not be defined as "the general public".

      具體而言，“相關公眾”包括但不限于：

(1) and use

A category of goods or services related to consumers;

(2) other operators who produce the goods or provide services;

(3) distributors and related personnel involved in distribution channels.

Among them, "consumers" should be interpreted as containing actual and potential consumers.

The public's awareness of trademarks is, in general, available through the duration of the use of trademarks.

The duration, extent and geographical scope of the publicity work should be determined and, if necessary, commissioned by a social survey agency to conduct consumer surveys or public opinion surveys.

　　在適用其他４個認定馳名商標的考慮因素時，應當強化當事人的舉證責任：

(1) yes.

The use of proof of duration shall be provided by the parties concerned with the history and scope of the registration and use of the trademark.

(2) to prove the duration, extent and geographical scope of any publicity work of the trademark, the parties concerned shall provide relevant materials including advertising promotion and promotional activities, geographical scope, types and levels of publicity media, advertising volume, coverage and advertising costs.

(3) the certification of the trademark as a record of the protection of a well-known trademark shall be provided by the parties concerned, including the material that the trademark has been protected by an administrative organ or court in China or other countries and regions as a well-known trademark.

(4) the proof of other factors for the well-known trademark shall be provided by the parties including the output, sales volume, sales revenue, profits tax, sales area and other related materials of the major commodities that have been used for the past three years.

　　（三）對申請認定馳名商標企業資信狀況的審查

The establishment of well-known trademarks is the result of continuous improvement of the quality of products and the promotion of advertising by enterprises. It is based on the reputation of enterprises and commodities. In turn, it will strengthen the reputation of enterprises and commodities, promote the market share and sales growth of goods, and enhance the market competitiveness of enterprises.

At present, in order to prevent some enterprises that do not have the market competitiveness to achieve some improper purposes by fictitious litigation, it is necessary to examine the creditworthiness of enterprises applying for the identification of well-known trademarks in the strict accordance with the statutory standards.

However, the credit status of enterprises is only a reference factor for determining whether a trademark is famous, rather than a determinant.

      司法實踐中，應審查的情況包括：

(1) the reputation of the applicant enterprise, including whether it complies with the state laws and regulations, pays taxes according to law, and operates in good faith, is punished by the administrative department for illegal operation.

(2) whether an application enterprise refuses to perform effective judgments or evades debts;

(3) whether the application company has been complains of wages in arrears in recent years;

(4) all kinds of honors from the government departments, trade associations and other organizations have been obtained by the application companies in recent years.

Editor: vivi