Dispute Over Trademark Right: Administrative Adjudication Or Judicial Action?

The 5 aspects of justification, fault, fairness, integrity and confusion are the factors that must be taken into consideration in judging infringement. At present, China is Trademark right The protection is taken by the dual track system of administrative protection and judicial protection. In the economic life, the "brand name" cases happen frequently because of the exclusive right to use registered trademarks. Most of these cases are intellectual property rights conflicts. When such cases are brought to court, one side usually suggests that the registered trademarks and trade names of the other party should be revoked through administrative remedies first. The court can not directly identify the defendant's use of infringement. Jurisdiction Unable to act on behalf of Administrative power 。

Then, which trademark infringement cases should be accepted by the court and which should not be accepted?

If a registered trademark is not used according to law, the court can accept it directly. As early as three years ago, the case of trademark infringement and unfair competition between Bonet Li company and Shanghai meizheng company, which had been sensational for a long time, was tried by the Shanghai court to split the registered trademark of "meizhao" into "Meizheng" Pinyin letters and petal graphics. It was used in conjunction with the "Montagut Mei steamed" logo, instead of using the registered trademark of "Mei steamed" according to law. Therefore, the case does not have the authorization dispute of the trademark, and it does not need to be ruled by the trademark review board first.

The judiciary believes that not all conflicts between registered trademarks can be directly accepted by the court. If the defendant fails to use his registered trademark in accordance with the law, the court can still directly accept the case and make a referee. The provisions of the Supreme People's Court on Several Issues concerning the trial of civil disputes involving registered trademarks, enterprise names and prior rights conflicts clearly stipulate that the plaintiff should accept the plaintiff's action against a registered commercial mark which is used beyond the scope of approved commodities or in the manner of changing the salient features, splitting and combination.

The judicial interpretation mainly includes the following three situations: first, the defendant uses his registered trademark style in the goods or services approved by the non Trademark Office; two, although it is used on approved commodities or services, it changes its trademark's appearance or style, including the use of splits, and the three is its improper registration or combination of multiple registered trademarks.

Another way of using the defendant is that although the defendant owns several registered trademarks, it will superimpose and combine multiple registered trademarks, and through word processing, weaken or weaken part of the text, highlighting other words, resulting in conflicts with the first registered trademarks of others, resulting in confusion. If a defendant owns two registered trademarks of "Royal Palace" and "courtier", but when he is standing side by side with the two trademark on wine, he will dilute the words "Palace" and "minister" and highlight the word "Wang" and "Chao", which may conflict with the "registered" trademarks of others on wine, thus forming trademark infringement. An integral mark produced after the use of the accused can also be regarded as an unregistered trademark and thus not subject to the approval of the Supreme Court. Although the defendant uses his trademark, it is essentially an abuse of trademark. {page_break}

The conflict of rights between registered trademarks and other commercial signs should be resolved through judicial proceedings. A winery in Northern Jiangsu develops a 60 degree strong liquor, which has a good market in Northeast and Xinjiang. In order to further expand the market, the series of "Water Margin one hundred single, eight will" series, which were painted by others, were registered as liquor trademarks, and the liquor produced has a good sales volume. Later, the author of the series of "Water Margin one hundred single, eight will" file a lawsuit against the law, claiming that the brewery has registered its fine works without authorization and used it on the liquor produced, violating its copyright in art works. The court held that the plaintiff had copyright in his work, and the defendant's trademark was legally registered, but he did not authorised the use of others' works on the goods sold, thereby violating the plaintiff's copyright. Therefore, it was ordered to stop using the series of Water Margin one hundred single, eight will and compensate the plaintiff's economic losses. After the judgment comes into effect, the plaintiff applies the court judgment to the Trademark Review and Adjudication Board to apply for revoking the trademark of the defendant. The basis of the case is the principle of protecting the prior rights. The plaintiff shall have prior copyright and shall be protected.

The provisions of the Supreme People's Court on Several Issues concerning the trial of civil disputes involving registered trademarks, enterprise names and prior rights conflicts stipulate that the plaintiff shall bring a lawsuit on the basis of the original rights of the plaintiff, such as the infringement of his copyright, design patent right, and enterprise name rights, such as the words and figures used in the registration of others' registered trademarks, and conforming to the 108th provision of the civil procedure law, and the people's court shall accept it. The reason for this provision is that the identification of prior rights (such as copyright, design patent right, enterprise name right, etc.) and the determination of infringement of prior rights all exceed the professional scope of the trademark administrative adjudication agency. Moreover, in the case of judicial review of administrative adjudication, the same right conflict may require "three trial", that is, the first instance of the trademark review board and the judicial two trial can be resolved, which may cause the waste of administrative and judicial resources, thus affecting the efficiency of the right relief. Therefore, in solving the conflict between registered trademarks and other prior rights, priority should be given to the principle of judicial procedure.

The conflict between registered trademarks and registered trademarks should be resolved through administrative adjudication. This is a typical case of disputes over registered trademark conflicts. In a case filed by a plaintiff's candy factory, the plaintiff registered a trademark of "Le" brand on a solid feed, and the defendant registered "mulberry" brand on the "Guo Zijing, fruit powder, lactic acid beverage" and other commodities. Two trademark is similar. The plaintiff confectionery factory filed a lawsuit against the court that the defendant's food factory used trademark similar to its trademark on the similar commodity, which constituted trademark infringement. The court informed the plaintiff of the administrative cancellation procedure and decided to dismiss the plaintiff's claim. The reason for the court is that the trademark of the plaintiff "Le" brand and the trademark "mulberry" brand of the defendant have been registered by the trademark. The parties should first bring the administrative ruling department to solve the conflict of trademark rights, and then request the court to deal with the infringement dispute. Under the current legal framework, the scope of cases that the court does not directly accept is mainly the conflict between registered trademarks. In such cases, administrative prepositional procedures are applicable, and the parties concerned should first apply to the administrative authorities for settlement.

The provisions of the Supreme People's Court on Several Issues concerning the trial of civil disputes involving registered trademarks, enterprise names and prior rights conflicts stipulate that the plaintiff shall bring a lawsuit against a registered trademark of another person's use on the approved commodity and the same as the original registered trademark. The people's court shall notify the plaintiff to apply to the competent administrative organ for settlement in accordance with the provisions of article 111st (three) of the civil procedure law. The first thing to consider is to adopt a unified centralized authorization system for trademark registration, and to adopt the administrative preposition procedure in order to maintain this centralized authorization system. Secondly, after the conflict, the current trademark law has set up relatively perfect legal relief procedures and channels, and stipulates improper procedures for the cancellation of registered trademarks. If the prior holder considers that the registration is inappropriate, he may apply to the Trademark Review and Adjudication Board for cancellation of the trademark in question, and then to the court for civil relief. The conflict between registered trademarks is the professional scope of trademark administrative adjudication bodies. The Trademark Review Board has rich experience and solid professional knowledge to deal with such conflicts.