One, the way of making

Beijing Higher People's court acting judge Zhong Ming: China's current trademark law in2001Years12Month1The day started, first established a trademark licensing administrative litigation system, this is China's accession to the world trade organization executive "intellectual property rights" trade related requirements and do change. Thus, the administrative case right until now held by the Beijing first intermediate people's court as the court of first instance, the Beijing Municipal Higher People's Court of second instance as the court of final appeal trial license trademark.2010Years4Month20The Supreme People's Court issued "on Several Issues concerning trademark licensing administrative cases confirmation opinions", to provide a full range of guidance to the Beijing City Court's trademark licensing administrative cases is the trial, trial scale unprecedented unity in many aspects. But in recent years the trademark licensing continued growth in the number of administrative cases right, in-depth study of administrative organ, the administrative relative person and authorized agent on trademark right of judicial policy, found the problems and the new law enforcement is not uniform phenomenon in judicial practice. In this regard, the Beijing Municipal Higher People's court formulated the "trial guidelines on trademark licensing administrative cases right" (hereinafter referred to as the "guide" trial). Trademark licensing problems of administrative cases in Beijing city based on the court, established several problems needing attention in the trial of such cases, and in the "guide" specific to be clear in the trial.

Pay attention to the administrative litigation judgment benchmark

Administrative litigation judgment benchmark, refers to the people's court in the review of the legality of a specific administrative act should be in what time to state the facts and legal status as a benchmark to judge whether the problem. Determination of administrative litigation judgment benchmark should be based on the provisions of substantive law shall prevail, in fact, trademark licensing administrative case shall be the litigation right of application for trademark registration time shall prevail, exceptions to review the facts or the people's court judge to state the facts shall prevail. Ideas such as the well-known trademark protection, should prove its advocates the protection of trademarks for days before the state has reached the well-known trademark in dispute; dispute is a continuation of a trademark trademark reputation based, should be shown before the foundation of application for trademark registration in the cited trademark has been used and have a certain visibility, the public can the trademark and trademark dispute together etc..

Pay attention to the law applicable system interpretation

A legal determination of trademark right conditions while in China's current trademark law in each chapter, but still constitute a general and unified system, norms applicable in practice of these laws also need to follow the systematic thinking, otherwise you may have just the occasional even in some specific cases, in the whole is also easy to cause and result of case handling inconsistent or confusion in interpretation. The right of legal norms can be divided into authorized trademarks3Types: Registration Act, violation of public order and good custom violates the honest credit registration act, violation of the use of management obligations.

For the registration in violation of public order and good custom, the result is the registration of a trademark absolute invalid and could not have had any remedy, so there must be a clear basis for trademark law talents, and although the uncertain legal concept to soften the absolute prohibition provisions of the rigid registration, but are not allowed to expand its applicable miscellaneous provisions.

For violating the honest credit registration act, the result is usually the registered trademark invalid, but allow certain exceptions. Be based on2014Years5Month1The beginning of the implementation of the third revision of the Trademark Law Article fifty-ninth paragraph third regarding prior use defense regulations, advocate the dispute with the cited trademark through the use of trademark has been able to distinguish, to prove that the trademark in dispute in the cited trademark application has been used to ensure that the disputed trademark registration and use in accordance with the principle of honesty and credit.

For acts violating the administration of obligations, is to define the trademark use behaviors. Trademark use behaviors is a factual behavior, not mechanically legal behavior evaluation methods to evaluate, so use behavior in the trademark process, its action is legal should not judge whether a trademark is the use of elements.

Respect for the history and reality of legal judgment

China's current trademark law of trademarks shall be registered or whether maintaining registration although the provisions of the statutory conditions, but satisfy the condition needs certain facts as the basis, in particular, is closely related to trade and economic life, regardless of the actual situation, and not only from the angle of legal logic evaluation. In this regard, "the trial" is introduced in order to guide consumer survey as to determine whether the easy confusion evidence, as long as meet the requirements of the consumer survey conclusion can be admissible as evidence. In addition, although the "guide" in the trial is not specified, but the significant judgement can also introduce consumer survey as to whether have significant, especially through the use of evidence obtained significant.

Distinguish the procedure illegal and improper procedures

The administrative procedure law, administrative procedure law, it shall revoke the specific administrative act; legal administrative act, should maintain the specific administrative act; but in the administrative litigation law judicial interpretation also stipulates the in certain circumstances can be rejected the plaintiff's claim, as an alternative to maintain the specific administrative act of judgment. Defective for the specific administrative act, but the relevant laws, administrative regulations and the procedure is not provided, constitute a violation of legal procedure, the practice is not a, therefore, should consider the judicial substantive policy on the settlement of disputes of the Supreme People's court. "Guidelines" provisions for trial, legal, administrative regulations did not provide procedural issues or provisions of unknown, the administrative organ's lacks rationality, whether the illegal procedure should be combined with the specific administrative act entity results comprehensive judgment. If the application has a problem but the real results is not inappropriate, actually has not caused the administrative relative person right damage, can point out the specific administrative act improperly, dismissed the plaintiff's claim; if the program itself, the entity processing results also is wrong or due to procedural issues to damage the administrative relative person's right, you can pointed out the procedure and the entity in the revocation of a specific administrative act of error, so that the State Administration for Industry and Commerce Trademark Appraisal Committee (hereinafter referred to as the TRAb) be corrected in a new specific administrative act.

Two, the main problem

Problem recognition and protection of well-known trademark

The Beijing Municipal Higher People's Court of intellectual property court judges Cen Hongyu: "the trial guidelines on trademark licensing administrative cases right" (hereinafter referred to as "trial guidelines") the first recognition and protection of well-known trademark is mainly relates to the problem, the terms from the case perspective to guide thinking, more procedural guidance.

First of all, the cited trademark for the parties to provide when constitutes a well-known point of time made a demand, reflected on the administrative litigation judgment benchmark grasp. First, cited third times in the second and third paragraphs of the Trademark Law of thirteenth modified as an invalid reason, the request must prove the well-known state has been cited in the dispute before the trademark trademark application date; second, in the administrative review and judicial review process in the past, to prove to the parties submit constitutes a well-known evidence the application date later in the dispute of trademark, accept not basically, but in practice for the cited trademark provided by the parties in dispute in the future application for trademark was identified as well-known trademarks and other evidence to prove that the cited mark in litigation trademark application has been in the well-known state, generally be adopted.

Secondly, the well-known trademark that several elements of standard exists order clarification. The fourteenth trademark law after third revisions of the provisions of the first paragraph, well-known trademarks should be according to the request of the parties, as dealing with trademark cases need to identify the facts, that is clear, "on-demand identified" principle. In this regard, "guide" trial principle, must first determine whether the well-known trademark protection of the request to the state, if the claimant to submit evidence is unable to identify the cited trademark has become well-known, of course no longer on whether or not to copy, imitation or translation of that; but if documented evidence enough to prove that the cited trademark constitutes a well-known trademark, but do not meet the conditions, can also be not whether the cited mark constitutes a well-known trademark review, has not decided the necessity of well-known trademark, so as to meet the "on-demand identified" principle.

In addition, the parties involved in the third paragraph only explicitly proposed the trademark law thirteenth applies third revised, but did not specify the dispute trademark violation of third revised trademark law article thirtieth or thirty-first reasons cases, judges take the initiative to apply the third revised trademark law article thirtieth or thirty-first, whether belongs to the erroneous application of the law. In such cases, under normal circumstances should follow the principle of the parties request, but in practice the request of the parties and the only reason some of the relevant facts were stated, and no clear we should law applicable, the judge may have authority to apply the law to select or change.

Problem identification and protection of geographical indications

Beijing Higher People's court acting judge Zhou Bo: frame of our country of the present trademark law, only the existing trademark law sixteenth and the "Trademark Law Implementing Regulations" article sixth and geographical indications registered trademark of the provisions, relatively specific provisions are mainly embodied in the "collective trademark, trademark registration and management measures". But these provisions in practice difficult to meet the actual needs, determination of trademark right in judicial work, "guide" on the basis of summarizing trial trial experience, put forward3Opinions.

First, starting from the basic function, understanding and geographical indications related "to mislead the public". According to the provisions of the second paragraph of the current trademark law sixteenth, geographical indications of the basic function is to identify the sources of goods in a certain area, and the specific quality, reputation or other features, is mainly decided by the natural or human factors. Although the geographical indication is incorporated into the framework of the trademark law to protect, but China's current trademark law in the first paragraph of article sixteenth emphasizes "misled the public", not confused misidentification general significance of our current trademark law related public goods is due to the particular product providers, but particularly related to the use of the public geographical indication whether the goods made from the region indicated by the geographical mark confusion. In order to eliminate the error of understanding, "guide" the trial4Clearly stipulates: the trademark licensing administrative cases is right, according to the current trademark law of the first paragraph of article sixteenth proposed related claims, "that the dispute shall apply for trademark registration is easy to cause the relevant public mistakenly believe that the use of the trademark product from the region indicated by the geographical mark".

Second, the function of trademarks with different types of different, should not be the trademark similarity comparison. In general, the basic function of trademarks or service marks of distinction is the source of goods or services, so that the relevant public sources between different commodity or service provider in identical or similar goods or services to make the distinction between geographical indications; the basic function is mainly to identify the sources of goods in certain area, and the goods the specific quality, reputation or other features, is mainly decided by the natural or human factors. This is a big difference on the function decides the application of the existing trademark law article twenty-eighth in China, two types of these functions can not be completely different trademarks approximate matching. Therefore, "guide" the trial5Article should not be to others prior common trademark, the trademark or service mark, as a trademark or a collective trademark registration rights obstacles, and on this basis, the supplementary provisions should not trademark or the collective trademark rights obstacles as other trademark or service mark application for registration to the prior registration geography.

Third, geographical indications prove trademark and collective trademark not registered or invalid legal. China's current trademark law only in the concept of geographical indications is clear, but not does not belong to the geographical indication, should not serve as a geographical indication trademarks or registered trademarks of the collective trademark application for registration, the registration shall not be approved or invalidated the laws applicable to make specific provisions. China's current trademark law article thirtieth except for identical or similar goods of the same or similar trademark registration provisions, there is a "who do not comply with the relevant provisions of this law, regulations of the principle of". In this regard, "guide" the trial6For this itself does not belong to the geographical indication, should not serve as a trademark or a collective trademark to be registered in the case, and make a prospective specified in applicable law, to find a relatively feasible solutions to the dilemma of the law application may appear in the future.

Determine the misidentification of confusion

Beijing Higher People's court acting judge Dai Yiting: "hear" the guide7The provisions of the independence of the exclusive right to use a registered trademark, it is the foundation for solving the problem of goodwill continues. Each registered trademark independently, the attachment of the trademark right is independent from each other, even if a registered trademark of the trademark owner is the same person, enjoy the different trademark exclusive right to use a registered trademark is independent from each other. This is because the scope of the exclusive right to use a registered trademark is limited to the approved the use of goods and approved the registration of a trademark, the same trademark has registered trademark can not continue.

The nature of trademark protection is the protection to goodwill, although China's current judicial practice extends registered conservative on trademark, but does not deny the goodwill of continuity. On the contrary, in the judgment of two mark is likely to cause consumer confusion, the goodwill continue or not and can also be used as a factor. "Guide" the trial8With the9Shall goodwill recognized different continuation. The continuation of the rationality of goodwill is continuation based the use of trademarks, goodwill continue typically involves the basis of trademark rights of the same people formerly registered and in application and basic trademark identical or similar in trademark, as well as others in the basis of trademark registration or after, obtain first trial announcement before the date of application after the trademark trademark.

In recent years, more and more parties authorized rights case advocate the use of the Supreme People's court "several issues concerning trademark licensing administrative cases is the right opinions" article in the trademark1Article, "how to determine the formation of a stable market order can be distinguished with the cited trademark" is expected to clear the current problems in judicial practice. "Guide" the trial10Through article12On how to identify "to form a stable market order to distinguish with the cited trademark" make provisions.

"Guide" the trial10Clearly the practical distinction must be strictly limited to the use of the trademark, use before the filing date of the cited trademark, the Trademark Law Article fifty-ninth paragraph third the provisions and third revised coordination. Prior use defense establishment premise is the use of prior to the date of application, starting from the value angle, formed using actual distinction should be used before the filing date of quotation marks.

"Guide" the trial11The regulations on the allocation of the burden of proof. Master Zhang litigation trademark through the use of already formed a stable market order can distinguish the cited trademark litigation trademark application for registration who bears the burden of proof, it should not only bear proof of litigation trademark after use and have awareness, but also should prove to be relevant public dispute and the cited trademark trademark distinguish. Which provide the public to distinguish between two trademark evidence not of negative facts, combined with the "guide" the trial12The provisions of evidence forms, the ability of application for trademark registration dispute has proved the fact to be proved. At the same time, "guide" to encourage trial adduce trademark holders to submit to the relevant public dispute and the cited trademark trademark confusion evidence, help judges judge the actual situation of the corresponding market.

"Guide" the trial12The provisions of the actual decision elements distinguish. In addition, the dispute the use of trademarks and the cited trademark visibility conditions, the dispute of application for trademark registration of the subjective condition is also one of the factors considered. The Supreme People's court in the "on the full play of intellectual property trial functions shall promote the development and prosperity of socialist culture and promoting independent issues of coordinated development of economy views", the relevant trademark has high visibility, coexistence or trademark is the formation of special conditions, trademarks similar should also be based on the subjective condition and both the user and the actual use of the relevant public, using historical, cognitive status and other factors to determine, respect has objective formation of market structure, prevent simply mark elements approximately equal to similar trademarks, achieve inclusive development between operators.

The dispute of trademark and the cited trademark actually distinguish is an objective fact, not legal judgment, therefore, need to be proved by evidence. Market research conclusion is that confusion direct evidence or not, in the trademark licensing proceedings should be put to good use. But the market research in China is chaotic, the investigation conclusion credibility is not high. In this regard, "guide" the trial13A further market research conclusion is one of the forms of evidence to prove the actual distinction, market survey procedure, method and conclusion of the guidelines, the provisions of the market investigation necessary elements and methods of use, clearly missing elements, elements using the wrong or cannot verify authenticity of market survey findings are inadmissible.

Problems in the protection of the prior right

Beijing Higher People's court presiding judge Xie Zhenke: the provisions of China's current Trademark Law: "the application for trademark registration shall be without prejudice to the prior right of another person, the" provision "prior right" including the name right, copyright, trade name right, portrait right and other civil rights, and according to "the people's Republic of China Tort Liability Act" and other laws of general provisions to be protected civil rights and interests, such as: commercial interests, drug name.

At present, the judicial practice about the determination of trademark right is involved in the prior rights mainly focus on copyright, the right of personal name and the name right of enterprises, "guide" on issues related to the trial prior copyright and the prior right of name regulations.

The prior right of name, "guide" the trial16Clearly stipulates: the prior right of name in the name includes the use of household registration in the name, pen name, alias, including name, nickname, nickname, etc.. "Guide" the trial17The prior right of name in the name is further summarized: those who can and specific natural person to establish subject identification symbols corresponding relation can be considered as the natural person's name.

The trademark licensing administrative cases is right, there are different practice how to apply the clause protecting natural person of the Trademark Law of the right of name, some cases will be the name of a natural person right as the prior rights applicable to the current provisions of the Trademark Law Article thirty-first shall be protected, in some cases, apply the existing trademark law article tenth (eight) item "adverse effects" protecting natural person's right of name. "Guide" the trial according to the different situation of the problems mentioned above were unified, the14Article: "the political, religious, historical and other public figure's name as a trademark application for registration, to China's political, economic, cultural, religious, national, social and public interests and public order, negative, negative effect, that belongs to the Trademark Law Article tenth (eight) rule 'there are other adverse effects' of the case"; Article15Regulation: "in the name of a natural person to apply for registration as a trademark to the detriment of the name of the natural person right, not as belonging to the Trademark Law Article tenth (eight) required 'to have other adverse effects'."

"Guide" the trial18Provisions of what kind of behavior should be identified as a specific name damage Natural Rights Act: "knowing the specific natural person's name to theft, fraudulent use of the name and other means to apply for registration as a trademark", should be identified to damage the specific name right of the natural person's behavior. At the same time, although the damage specific natural person first name right behavior with the specific natural person's reputation, but the specific natural person's reputation is not his name right protected premise, only identified as related to whether the public will a name and specific natural persons to establish factors corresponding relationship "guide", the trial19To be clear.

In addition, "guide" also conducted a Trial Provisions on the subject that first name right damages, the article20"Normally, the provisions shall be made by the natural person I advocate the right of name". After submitting its brokerage relationship model, actor name right authorized scope clear special authorization documents and other special circumstances, the authorized agent can be used as an interested person claims that the models, actors such as the right of name.

The above provisions for the cases of trademark disputes, further defined the current trademark law forty-first paragraph second prior right of name "stakeholders" scope.

The trademark review of the case, to unify the existing legal framework of such cases, also in accordance with the relevant provisions of the Trademark Law Third Revised content. China's current trademark law thirtieth stipulation: "the trademark, within three months from the date of the publication, any person may file an opposition to", the article provides that "any person" should be understood, the different understanding in judicial practice. The third trademark law article thirty-third revised agreed to amend the provisions of the right of name, priority based on damage and objection is only the prior holder or interested parties. This view of the current judicial practice basically is used.

The prior copyright, "guidelines" provisions of the trial were3A clause, principle of the trial in the basic problems and copyright civil cases based on consistent, in view of the special nature of trademark licensing rights cases made special provisions for individual questions. "Guide" the trial21The provisions of that trademark is a work still in accordance with the provisions of the copyright law22A clear identification of authorized administrative cases in the works right in trademark ownership still adopt the principle of presumption; Article23Special bar for the determination of trademark right case, prove the effectiveness of the "registration certificate" copyright rules different from the copyright civil cases.

Trademark signs constitute a work problem, consistent with the principle of copyright in civil cases, does not require a sign with a high artistic and aesthetic value, as long as it has the most basic originality that can identify which works, but printed letters or simple words usually are not considered to have originality, does not belong to the meaning of copyright works.

In determining the trademark constitutes works, the principle of presumption of the sign of the ownership of copyright works still follow the relevant copyright ownership of civil cases. On this basis, to regulate the determination of trademark right order, prevent the abuse of the right of dissent or dispute the applicant. Present situation and considering our country copyright registration system does not make a substantive examination, "guide" for the preliminary hearing evidence copyright registration certificate validity made special provisions: obtain a separate a trademark objection or invalid after the application of the copyright registration certificate, not as prima facie evidence of ownership of copyright. Unless there is evidence to prove that the registration rights certificate for the registration of trademark in dispute has been achieved only by copyright, or objection to the application or application invalid after the copyright registration certificate, is not sufficient to prove the copyright of the works belong to the subject of the certificate. At the same time, the copyright registration certificate may not be identified as preliminary evidence of the ownership of the copyright, but combined with the actual use of a trademark registration certificate and evidence of trademark, it can be proved that the certificate to the registration body interested party identity.

The trademark licensing administrative cases is right, the ownership of copyright evidence and identification of copyright civil cases still take a more cautious attitude. "Guide" although the provisions of the trial is not enough to prove that the ownership of the copyright of the works copyright registration certificate is only obtain trademark objection or invalid after the application for certificate, but to obtain trademark objection or invalid before applying the copyright registration certificate can be used as preliminary evidence of the ownership of the copyright, often still is to be combined with other evidence for comprehensive accreditation.

Procedural problems

Beijing first intermediate people's court presiding judge Si Pinhua: the administrative law is the substantive law and procedural law. Combining with the procedure and entity closely is characteristic of administrative law, the legal entity and the procedure to conduct a comprehensive review is one of the basic principles of administrative proceedings. However, trademark rights authorized administrative case is different from the ordinary administrative procedure, the trial mode and common administrative litigation is different, the litigation shall be in conformity with the characteristics and law of the development of the trademark itself. In judicial review, we should strengthen the administrative procedure review, but also to prevent the circulation procedure, timely and effectively prevent malicious registration, and to settle disputes legal effect and actual effect.

First, the relevant issues are the business license was revoked the objected trademark rights. Review of the trademark owner qualification requirements in terms of both China's current trademark law article fourth, including the human rights for the trademark is real intention to use aspects of the review. In no other proper reasons and in accordance with the relevant regulations, can the provisions of the trademark shall not approve the conclusion.

Second, issues related to the Trademark Review and adjudication procedures of the transfer. "Guide" the trial25A proper increase of the judges to notify the transferee's duty, safeguard assignee's right to participation and the right to a hearing. The so-called "increasing" refers to, still pay attention to legitimacy for the administrative adjudication of judicial review in the real reason, if by the judges of the administrative decision is correct, only to do not have the obligation of notification, the only "improper procedures", and does not constitute a violation of procedure. In addition, "the legal status of trademark trial guide" the transferor and the transferee clearly defined.

Third, the service of the judges. First of all, the adoption of the "in fact received" cognizance standard and jurally two modes to exist. To effectively safeguard the legitimate rights and interests of the parties, the judiciary for TRAb delivery behavior to adopt more stringent "in fact received" standard, but if after TRAb exhaustive face-to-face delivery, mail delivery, still can not sent to the parties and to take notice of delivery, belongs to the legal sense of the service shall be deemed this has served to the parties, legal effect. Secondly, adopt a strict standard of proof. TRAb internal document delivery list, mailing and has not been back pieces of material evidence because belongs to its internal material or can not prove that the parties actually received, therefore, can not be fulfilled its obligations valid evidence to. If the judges take the way of public announcement, shall submit the notice served by the evidence. In addition, simply fail to delivery obligations constitute only improper procedures, do not constitute a violation of procedure. In judicial practice, judges have served even procedural law of the people's court case, also on the substantive issues of legal administrative decisions made and not.

Fourth, avoid the problem of system. For the pure procedural violations constitute only the same reason improper procedures, judges are merely did not inform the client behavior the members of the collegial panel does not constitute cancellation independent reason of administrative adjudication, only when the legal reasons it is should be avoided but did not withdraw when composing process, of course, this requires the parties to provide the corresponding evidence in judicial proceedings.