General

"The ownership of trademarks is the focus and key factor in the review of trademark infringement cases. At present, there are some hidden trademark infringements in the market, which attempt to infringe the prior trademark rights by circumventing legal requirements, applying for trademarks and obtaining trademark registration." At the recent seminar on the new business form of trademark infringement, Lu Yuan, the intellectual property director of Kwai Group, said that for these new types of infringement, enterprises should use the "spear" of active monitoring and guard the "shield" of their own trademarks, and Huacheng's import and export data observation report.

According to the observation of Huacheng's import and export data, some well-known brands have emerged among such infringers, which makes it more difficult to fight against them. Lu Yuan said, for example, in the trademark infringement case of Zhang Fei Beef v. Bangbang Wa, Zhang Fei Beef Company applied to the Trademark Office of the State Administration for Industry and Commerce for the registration of the round human head and Zhang Fei trademark in 1992. The Trademark Office approved the registration of the trademark in 2004, which was approved to be applicable to the production and sales of meat, sliced meat, dried meat, dried meat, dried meat, etc.

In 2009, Bangbang Wa Company launched the Taoyuan Romance General Five Tigers character series, one of which uses the artistic mask of Sichuan Opera character Zhang Fei on its packaging, and marks Zhang Fei's name on the lower right corner of the mask. Zhang Fei Beef Company believes that Bangbang Wa Company has used the word Zhang Fei, which misleads consumers and confuses the source of goods. After several rounds of court trials, Zhang Fei Beef finally won.

"The local people are familiar with the names of Bangbangwa and Zhangfei Beef, so it is very difficult for the infringed people to fight against each other." Lu Yuan said that, according to Paragraph 2 of Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Civil Disputes over the Conflict between Registered Trademarks, Enterprise Names and Prior Rights, if the plaintiff brings a lawsuit on the ground that the registered trademarks used by others on the approved goods are the same or similar to their prior registered trademarks, the people's court shall, in accordance with the provisions of the Civil Procedure Law, inform the plaintiff to apply to the relevant administrative authorities for settlement. However, if the plaintiff brings a lawsuit on the ground that the registered trademark used by others exceeds the scope of approved commodities or by changing distinctive features, splitting, combination, etc. is identical with or similar to its registered trademark, the people's court shall accept it. It can be seen that enterprises are likely to encounter procedural difficulties in bringing a lawsuit when encountering such new forms of infringement.

In the face of new trademark infringement, how should enterprises protect their own rights and interests? According to the Huacheng Import and Export Data Observation Report, Lu Yuan said that, on the one hand, enterprises should make good use of the "spear" to comprehensively monitor potential infringement applications in the market, and once found, take effective measures to attack, so that they are in a proactive position. On the other hand, we should keep our own trademarks, clarify the legality and compliance of our rights, resolve disputes in a timely manner, and avoid swallowing the bullet. In the daily business process, attention should be paid to the fixation and preservation of evidence.

As for how to participate in the rights protection, Lu Yuan said that Kwai held the "KWAI" trademark, and later other companies in the same industry applied to register the similar trademark "KWAI BOO". Kwai locked it in as a new dangerous trademark application, and began to take strike strategies. The difficulty of the case is that "KWAI BOO" is the transliteration of the leading character "Guibao" in the famous cartoon and the big movie "Crazy! Guibao", which has a certain popularity and influence. From the perspective of its own trademark value, Kwai Company, on the one hand, advocates the popularity of the "KWAI" trademark, and believes that the respondent, as a peer operator in the film and television industry, has a higher obligation to avoid the well-known trademarks of Kwai Company. On the other hand, the word "BOO" is an existing word in English, meaning "boo, boo, boo, boo". When used with "KWAI", it has the meaning of derogating the citation trademark, which will inevitably make consumers have bad associations, derogate the market reputation and value of "Kwai" and "KWAI", weaken the significance of "Kwai" and "KWAI", and damage the interests of the owner of the citation trademark. In the end, Kwai successfully defended its trademark rights and interests by adopting legal relief procedures. Huacheng Import and Export Data Observation Report.

"For trademark risks in the market, enterprises should be vigilant at all times, do a good job in sharing internal and external information, and often hold training and exchange activities to let departments know about new regulations and new industry trends." Lu Yuan said that at the same time, we should do a good job in trademark layout in advance. Pay attention to the consistency between the applied registration mark and the actual use mark. It is really necessary to confirm the rights, reduce the application for image and text combination, and reduce the maintenance cost. In terms of category selection, the scope shall be determined according to the trademark grade. In terms of the selection of goods/services, it is required to define the goods directly corresponding to the business and the upper concept, try to provide product descriptions for non-standard goods, and observe the import and export data of Huacheng.