Absolute Protection And Relative Protection Of Trademark Rights

< p > likelihood of confusion is the core requirement of trademark protection (which constitutes infringement of exclusive right to registered trademarks). However, in trademark protection, the same trademark ("double identical") in the same commodity has appeared to no longer require the possibility of confusion, which is an important trend and area to enhance trademark protection.

This situation is known as the absolute protection of trademark rights, and is also an important manifestation of strengthening the protection of trademark rights.

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< p > in terms of confusing essentials, article sixteenth (1) of the TRIPS agreement provides for the confusion of the presumption of "double identical", which has made the protection of trademark rights under "double identical" have the absolute absoluteness and certainty. However, presumptive confusion is still based on confusion, and there is no stereotype of leaving confusion elements.

Some < a href= "http://www.91se91.com/news/index_c.asp" > trademark > /a > legislation further goes directly to recognize the absolute protection of trademark rights under the "double identical".

That's the way the European Union is.

In accordance with the spirit of the EU trademark directive, the European Court of justice recognized the trademark protection under the "double identical" rule in the case, so that "there is a trend of absolute protection which no longer depends on the possibility of confusion in the same area of logo and commodity".

In the case of L 'Oreall Bellure, < a href= "http://www.91se91.com/news/index_c.asp > EU Court < /a > believes that absolute protection means that confusion is no longer a special condition of protection under the same condition of identification and commodity.

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< p > this is considered to be beyond the presumption of confusion in < a href= "http://www.91se91.com/news/index_c.asp" > TRIPS agreement < /a > sixteenth (1).

The European Court of justice, while abandoning obfuscation requirements, substituted for third people to use trademarks or to influence the functions of trademarks.

This function is understood as: "not only does it include the basic function of a trademark, that is, the protection function of the source of goods or services, but also other functions, especially the quality of the goods or services involved, the pmission of information, investment, or advertising."

These functions cover a wide range of investments from the protection of source identification to brand image.

"In many cases, the mere indication of identity is the same as that of goods.

As a result, the EU trademark rights in the "double identical" field are very close to the exclusive rights granted by the copyright law and the patent law, that is, only using the protected objects can constitute infringement.

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< p > China's trademark law fifty-seventh item (1) does not stipulate the requirement of presumption confusion under the condition of "double identical". It also belongs to absolute protection. That is, "without the permission of the trademark registrant, the trademark used in the same commodity will be used in the same trademark".

This regulation reflects the attitude of strengthening trademark protection under the "double similarities".

At present, some people still interpret this provision as presumptive confusion rather than understanding it from the perspective of obfuscation. This interpretation is obviously questionable.

No matter from the provisions of the above provisions, the legislative history of China's protection of registered trademarks or from the perspective of comparative law, can not be interpreted this way.

Moreover, any absolutism is still accompanied by relativity, and it is not pure and unconditional absolute protection.

For example, absolute protection at this time is still restricted by the system of non commercial marking, prior use and proper use. Absolute protection is not unconditional protection.

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The application premise of < p > "double identical" is still the first to constitute the trademark usage behavior, and the situation that does not belong to the trademark does not fall into the scope of protection at all.

"Using the same trademark as the registered trademark on the same commodity" (the fifty-seventh item (1) of the Trademark Law) is the use of trademark in the first sense, that is, the use of trademark.

If the alleged infringement is not a trademark usage at all, it certainly does not constitute a violation of the exclusive right to use the registered trademark.

For example, the proper use of the fifty-ninth provision of trademark law is not the use of trademark.

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< p > there are other non identifiable uses (in the sense of non commodity source identification). For example, whether the "OEM" in the OEM is a trademark usage behavior, such an additional trademark ("OEM") which is used for overseas sales and does not enter the market circulation in China, does not have the function of identifying the source of goods in China, so it does not belong to the trademark usage.

For the use behavior of non identifying commodity sources, there is no applicable precondition and leeway for the same provisions of the fifty-seventh item (1) of the trademark law. It does not fall into the scope of protection and does not apply to absolute protection.

In other words, the first thing to judge is whether the trademark is used, excluding the non trademark use, and then it will be judged whether it is the same approximate use.

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