A Registered Trademark Must Not Exclude A Prior Trademark.

[case]

Founded in 2008, Beijing still has four stores in Beijing, Danny's hair salon (hereinafter referred to as the Danny Center), has been using "Shang Danny modeling" doorway and signs, suddenly met with the former employee family member Ms. Tan's prosecution, asked the center to ban the "Shang Danny" character, and to compensate for the loss of 200 thousand yuan, because Ms. Tan registered in the similar services Shang Danny character trademark.

The Danny centre was approved in January 11, 2008.

Subsequently, four stores opened one after another.

The four storefront shops of Danny center operate hairdressing business, and the four shop front and roadside signboards use the word "Shang Danny".

Since January 2008, the Danny center has been promoting its many stores through the public comment network in the name of "Shang Danny modeling" and providing group buying services. Its public comment network of Danny's Jianguo store has been reviewed for 1960 times, and has been labeled as five-star service.

The public comments on many online store addresses are also based on "Danny modeling" as the location mark.

In addition, the Danny center has also been promoted by Sina micro-blog and purchased micro-blog card business edition service to promote micro-blog fans to shop consumption.

From October 2010 to February 2011, Mr. Tan, the husband of the plaintiff, worked in the Danny center.

In August 16, 2012, Ms. Tan put forward Danny's application for trademark registration.

In January 2014, the Commissioner of Commerce approved the registration of the "Shang Danny" character trademark in forty-fourth categories of services, including medical massage, beauty salon, barber shop, health care, makeup artist, aromatherapy, animal feeding, garden design, spectacle line, sanitation equipment rental, etc. the registration period is valid from January 14, 2014 to January 13, 2024.

Ms. Tan claimed that the Danny center did not authorize the use of the Shang Danny trademark without its permission, violating its trademark exclusive right, and ordered the Shandani center to immediately stop using the word "Danny" in the workplace, destroy the product publicity materials and shop signs with the words "Shang Danny", stop using Danny to carry out online propaganda, compensate for economic losses 185 thousand, lawyer fees 10 thousand, and notarization fees 5000 yuan.

Shang Danny center argues that the center is the prior right holder of Danny's trademark and font, and has gained good reputation and certain influence after its continuous promotion.

Ms. Tan did not actually use the registered trademark. Her wife, a former employee of the center, was a malicious snatch. She asked the court to dismiss Ms. Tan's claim.

The court held that: since the establishment of the Danny center in 2008, it has been used as commercial logo by Shang Danny. This logo has been defined as trademark usage after long term use, that is, it has constituted an unregistered trademark.

Although the Danny center did not carry out trademark registration, according to the fact of its network promotion, it can be confirmed that its use of Danny as a trademark has already had a certain impact within a certain range.

Although the Danny center's use of the trademark of Danny still has the same service as that of Ms. Tan's trademark exclusive right, the trademark logo is identical. However, before Danny applied for trademark registration, he still used Danny's unregistered trademark in hairdressing service for many years, but Danny's center was still in use first.

In summary, the Danny center's use of trademark involved is in line with the provisions of the fifty-ninth article and the third paragraph of the trademark law. Ms. Tan has no right to prohibit the Danny center from continuing to use the Shang Danny brand in the context of its involvement.

At the same time, the Court pointed out that the Danny center's use of Danny's trademark should not exceed the scope of the case. Ms. Tan could also ask the Danny center to appropriately add the difference mark to distinguish the trademark involved.

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Finally, the court of first instance dismissed all the claims of Ms. tan.

[analysis]

Revised "

It was officially implemented in May 1, 2014.

The fifty-ninth and third sections of the revised trademark law are the first rule of trademark first use in China's trademark law.

The fifty-ninth article and third paragraph of the trademark law stipulates: "before the trademark registrant applies for trademark registration, others have already used the same commodity or similar commodity before the trademark registrant."

If a trademark is the same or similar, and has a certain trademark, the exclusive right holder of a registered trademark shall not be entitled to prohibit the user from using the trademark within the original scope of use, but may require additional appropriate identification.