How Does The Website Show That The Words "Well-Known Trademarks" Are Illegal?

Since 2016, the Fuzhou municipal market supervision and Administration Bureau has received reports that some Fuzhou enterprises with well-known trademarks in China publicize the words "well-known trademarks" on their self built websites. They are suspected of violating the provisions of the fourteenth and fifth sections of the People's Republic of China trademark law. "Production and business operators may not apply the words" well-known trademarks "to commodities, commodity packages or containers, or in advertisements, exhibitions and other commercial activities, and require that they be investigated and dealt with.

According to

According to the third provision, Internet advertising refers to commercial advertisements that sell goods or services directly or indirectly through text, pictures, audio, video or other forms through Internet, web pages, Internet applications, and other Internet media.

Websites built by enterprises usually display and publicize the contents of their products or services, and they should be identified as Internet advertisements.

However, different enterprises have different ways of using the words "well-known trademarks" on their websites, and there are disputes over whether they constitute a violation of the fourteenth paragraph and the fifth paragraph of the Trademark Law of the People's Republic of China.

In September 9, 2016, the Trademark Office of the State Administration for Industry and Commerce issued a reply to the Jiangsu provincial industrial and commercial bureau on the relevant issues concerning the use of well-known trademarks on the website of the enterprise itself, which clearly stipulates that "the company's record on the website or other business activities to protect its trademark from the protection of well-known trademarks has not been used prominently".

The word "behavior" does not belong to the illegal act described in the fourteenth paragraph and fifth paragraph of the trademark law. That is to say, in the introduction of the website, the text introduces the fact that it once obtained the "well-known trademark", and it is not illegal.

"If an enterprise is on the website or something else.

China intends to weaken the legal nature of the recognition and protection of well-known trademarks, and regard the words "well-known trademarks" as honorary titles and use them prominently, so as to publicize the goods or services that enterprises or marketing enterprises run. It does not belong to the category of fair use, and constitutes the illegal acts stipulated in the fourteenth and fifth paragraphs of the trademark law. That is to say, the publicity of famous trademarks on the front page of the website or the top left corner of each page promotes the illegal act of publicizing "well-known trademarks" in advertisements.

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According to the provisions of article second (two) of the Supreme People's Court on the interpretation of several issues concerning the application of law in the field of civil disputes involving the protection of well-known trademarks, a lawsuit against trademark infringement or unfair competition initiated by the enterprise name and its well-known trademark is the same or similar reason. The parties concerned take the trademark well-known as the factual basis, and the people's court considers it necessary if it is based on the specific circumstances of the case, and determines whether the trademark is well-known.

In this case, according to the above provisions, the plaintiff asserted that the defendant had unlawfully registered the plaintiff's well-known trademark "big run fat" as the name of the enterprise and constituted unfair competition, and requested the court to consider that the trademark was a well-known trademark.

According to the above provisions, not all cases involving the conflict between the right to name and trademark rights of a company must be based on the identification of the trademark concerned as a well-known trademark. Only when it is necessary is it necessary to identify the trademark concerned as a well-known trademark.

The "really necessary" situation should refer to the industries in which the accused infringed enterprises are different or different from the commodities approved by the trademark concerned.

In the case of unfair competition, the defendant shall bear the civil liability for stopping the infringement.

However, how to bear the civil liability for stopping infringement is not uniform in practice.

We believe that judging from the point of view of better execution, it is more advantageous for the judgment to stop using the trademark of the plaintiff as the font size.

Because the premise of changing the name of an enterprise is that the defendant must provide a substitute name. If the defendant refuses to provide the plaintiff, he will encounter difficulties when he applies for enforcement.

Moreover, it is not necessary to stop using the name of the enterprise containing the trademark of the plaintiff, and the defendant may also directly write off the relevant enterprises.

Therefore, in this case, the way to stop infringement is to stop using the name of "big run fat", instead of asking the defendant to change the name of the enterprise name.

According to the provisions of the first paragraph of article sixty-third of the trademark law, the Act implemented by Da Rand Company satisfies the requirement of "malicious infringement of trademark rights and serious circumstances". However, the calculation basis of punitive damages is the plaintiff's loss, the defendant's profit or the royalty of the involved trademark, but the above methods can not be applied in this case. Therefore, the "determination of the above method" of the basis of punitive damages amount does not exist, and the amount of punitive damages can not be determined.

However, since the trademark law has already stipulated punitive damages, it is explained that the trademark damage compensation system should follow the dual goal of filling losses and punishing torts. As a statutory compensation system for calculating the way of compensation for damages, it should also have the dual functions of compensation and punishment.

When determining the amount of legal compensation, the defendant's subjective malice can be considered as one of the considerations.

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