The Impact Of Similar Commodity And Service Differentiation Table On Identifying Trademark Infringement

In April 1997 and February 2000, the Xi'an pharmaceutical factory obtained the exclusive rights of "Lijun" and registered trademarks.

In September 14, 2004, the Xi'an pharmaceutical factory pferred the registered trademark to the Lijun group.

In August 7, 2006, Lijun pharmaceuticals granted the above-mentioned trademark.

From 2002 to 2005, Lijun pharmaceuticals and Lijun group released advertisements on CCTV, Phoenix TV's Chinese station and other provincial and municipal TV stations, bus bodies, newspapers and magazines, outdoor billboards, medical records and other media.

Lijun pharmaceuticals and Lijun group have won many famous brands such as Shaanxi's famous brand products. In the national pharmaceutical manufacturing industry, the efficiency is fifth, and the "Li Jun Sha" produced is well-known trademark.

In September 2005, Lijun discovered that the red jujube wrapping bag, which was distributed by the Department of light cereals and oils distribution in Zhouzhi County, which was operated by Ho Qi Qi, used the "Lijun" character and the graphic registered trademark, and then filed it with the court, requesting to confirm that "Lijun" and the graphic trademark were well-known trademarks, and ordered He Maiqi to stop the infringement and compensate for the losses.

The intermediate people's Court of Xi'an, Shaanxi province held that: in the trial of trademark infringement cases, if the defendant is accused of using a registered trademark of another person in cross category goods or services, the people's court shall examine and determine whether the trademark is well-known.

That is, when the people's court follows the general trademark infringement rules, it is impossible to determine whether the trademark is well-known as a necessary procedure for the people's court to decide whether or not the infringement is established when the infringement is established.

In this case, He Maiqi used the "Li Jun" character and graphic registered trademarks to be used on the dried jujube commodity packaging bags sold by them, while jujube and drugs are not the same commodities. It is a well-known fact that whether they belong to similar commodities should be judged from the functions, uses, production departments, sales channels, consumers or the attention of the public.

There are great crossover and substantial differences, mainly in the following aspects: (1) medicine has the therapeutic function of disease; jujube has health care function on human body, and has the function of drug introduction in Chinese medicine; (2) the production process of medicine has strict procedures; the date is the product of nature, and only needs processing and drying; (3) the sales channels of drugs are mainly in pharmaceutical enterprises, hospitals, clinics, drugstores and other specialized agencies, while the sales channels of jujube are usually in places where consumers often come in, such as supermarkets, shopping malls, and grocery stores. (4) the users of drugs are specific, generally for the sick, while the consumption groups of jujube are not specific, and men, women, old and young are all suitable. The consumption groups of jujube and medicine are both

Therefore, there are great differences in the functions, uses, production processes, sales channels and consumption objects of drugs and jujube. Therefore, the "similar commodity and service differentiation table" classifications of drugs into fifth categories of international classification, and jujube is divided into twenty-ninth categories in international classification. Based on the above reasons, drugs and jujube are not similar commodities in China's trademark law.

According to the fourteenth provision of the trademark law, the "Lijun" characters and graphic registered trademarks conform to the criteria for identifying well-known trademarks.

However, the request of a party to identify a well-known trademark requires the court to find out the facts and not to constitute a separate claim, so it is not necessary to express it in the judgment.

The registered trademarks of "Li Jun" and graphics shall be protected at a higher level on the basis of general trademark protection as well known trademarks.

Jujube outer packaging bags use "Li Jun" characters and graphics, which are exactly the same as the trademark words of Lijun pharmaceutical company, which is basically the same as the trademark logo of Lijun group. The use of this form conforms to the constituent elements of trademark infringement, and the trademark of the litigant is a well-known trademark, which has a high popularity and significance, which is easy to arouse the attention of the relevant public, causing the relevant public to misunderstand the source of the goods, or think that its source has a specific relationship with Lijun pharmaceutical and lejun group, and has damaged the goodwill of Lijun pharmaceutical and Lijun group. In this case, He Maiqi sells a lot.

In summary, the court decided: He Maiqi immediately stopped the act of infringing on Lijun pharmaceuticals, Lijun group "Lijun" and exclusive rights of graphic trademarks; he Maqi compensated Lijun pharmaceuticals and Lijun group for 5000 yuan, and reclaimed the remaining claims of Lijun pharmaceutical and Lijun group.

The case number is: (2006) No. 210th of the four characters of Xi min.

Case editor: Chongqing Higher People's court Sun Hailong, Xi'an intermediate people's Court of Shaanxi Province, Yao Jianjun.