October 12, 2002 the Supreme Court Justice adopted by the Committee at its 1246th meeting)
method-release (2002), 32nd
the Supreme People's Court
the Supreme People's Court on several issues concerning the trial of civil dispute cases trademarks applicable law explanation on October 12, 2002 by the Supreme People's Court, the Judicial Committee of the 1246th meeting for adoption. Promulgated since October 16, 2002.
Supreme People's Court on October 12, 2002
in order to correctly handling trademark disputes, in accordance with the People's Republic of China general principles of civil law, the People's Republic of China Law of contract and the People's Republic of China trademark law, and the People's Republic of China Law of civil procedure and other legal provisions, applicable law issues are explained in the following:
&Nbsp; is first the following trademark 52nd (e) provided to a registered trade mark the exclusive right to cause other damage:
(a) will work with registered trademark identical or similar words as the size of the enterprise in the same or similar goods outstanding, easy to make the public cause misidentification;
(Ii) copy, and copy imitation, and translation others registered of famous trademark or its main part in not same or not phase similar commodity Shang as trademark using, misleading public, led the famous trademark registered people of interests may by damage of;
(three) will and others registered trademark same or similar like text registered for domain name, and through the domain name for related commodity trading of e-commerce, easy makes related public produced errors recognize of.
according to the 13th article of the trademark law of the provisions of article, copy, imitation, translation, others are not well-known trademarks registered in China, or major part, trade mark in relation to identical or similar goods, likely to cause confusion, civil liability shall be liable for infringement be stopped.
article 40th article trademark law trademark licenses consists of the following three categories:
(a) the exclusive license, and refers to the trademark Registrant within the agreed period, geography and in the agreed manner, using the registered trademark licensed only to a licensee, trademark registration in accordance with agreed not to use the registered trademark
(Ii) exclusive using license, is refers to trademark registered people in agreed of during, and geographical and to agreed of way, will the registered trademark only license a was license people using, trademark registered people according to agreed can using the registered trademark but shall not separately license others using the registered trademark;
(three) General using license, is refers to trademark registered people in agreed of during, and geographical and to agreed of way, license others using its registered trademark, And are free to use the registered trademarks and licenses another person to use its registered trademark.
fourth trademark law article 53rd of the interested person, including trademark licensing contract of the licensee, registered trademark and property rights of the lawful heir and so on.
in occurred registered trademark dedicated right was against Shi, exclusive using license contract of was license people can to court filed litigation; exclusive using license contract of was license people can and trademark registered people common prosecution, also can in trademark registered people not prosecution of situation Xia, itself filed litigation; General using license contract of was license people by trademark registered people clear authorized, can filed litigation.
fifth trademark registrant or interested in continued broadening extension in the request for renewal of a registered trademark, without the prior approval, to sue others violate their right to exclusive use of registered trademarks, the people's courts shall accept.
sixth due to violations of the right to exclusive use of registered trademarks filed civil lawsuits by trademark law of 13th, 52nd, the implementation of the infringement set out in article, infringing goods storage or seizure seizure, the defendant has his domicile shall have jurisdiction.
infringing goods are stored in the preceding paragraph refers to a large number of occult or regular storage, location of the infringing goods; seizure seizure, refers to the customs, industry and Commerce administrative organs in accordance with the seizure, seizure of the infringing goods are located.
seventh implementation for different violations of multiple defendants filed a joint lawsuit plaintiff can choose one of the defendant's tortious act shall have jurisdiction only filed the lawsuit against one of the defendants, the defendant's tortious act of the people's courts shall have jurisdiction.
referred to in article eighth trademark law relevant public refers to trademarks which identifies certain goods or services relating to the consumer and the preceding is closely related to the marketing of the goods or services of other operators.
52nd Nineth trademark law (a) provision of trademark refers to alleged infringement of trademark and registered trademark of the plaintiff compared, both in Visual Basic, without discrimination.
trademark method 52nd article subsection (a) items provides of trademark approximate, is refers to was control infringement of trademark and plaintiffs of registered trademark phase compared, its text of glyphs, and pronunciation, and meaning or graphics of composition and the color, or its the elements combination Hou of overall structure similar, or its stereo shape, and color combination approximate, easy makes related public on commodity of source produced errors recognize or think its source and plaintiffs registered trademark of commodity has specific of contact.
article tenth trademark law of the people's Court according to article 52nd (a) provides that recognized principles of trademarks identical with or similar to the following:
(a) to the General attention of the relevant public standards;
(b) both the trademark as a whole than the right, Than the main part of a mark than to be in a State of isolation than to object separately;
(c) determining whether trademark, should consider requesting the protection of registered trademarks distinctiveness and reputation.
11th 52nd of the trademark law of the rules (a) provision of similar goods, refers to the function, use and production departments, sales channels and consumer objects of the same or related the general public considered it a particular contact, can easily cause confusion of goods.
services, similar means in the service of the objectives, content, methods, objects, and so on the same, or the relevant public generally believed that there is a specific link, confusing service.
goods and services similar, refers to the specific link between goods and services, causing public confusion.
12th trademark law of the people's Court according to article 52nd (a) provides that finds similar goods or services, should be based on the relevant public goods or services generally known synthetic judgment; goods and services for registration of marks, the international classification of goods and services discrimination can be used as a reference for similar goods or services.
13th people's courts shall be determined according to the 56th article of the trademark law of the infringer's liability, based on the right of people to choose the calculation method to calculate the amount of compensation.
14th 56th article of the trademark law of tort benefits, based on unit sales of infringing goods and the goods calculating profits on the products; the unit profit cannot be identified, in accordance with the registered trademarks of profit calculation.
section 15th 56th article of the trademark law of tort losses, according to the rights resulting from the infringement of commodity sales reductions or sales of the infringing goods and the trademark product of calculating profits on the product.
16th by the infringer for infringement of interests or infringement caused by the infringement of the losses are difficult to determine, the people's Court of the parties can request or according to the terms of reference of the 56th article of the trademark law shall apply to determine the amount of compensation.
people's Court at the time of determining the amount of compensation, should take into account the nature, duration, consequences of the tort, the reputation of the trademark, trademark license fee amounts, types of trademark licensing, time, scope, and stopping the infringement reasonable expenses and other factors identified.
in accordance with the provisions of the first paragraph of this article, the parties reached an agreement the amount of compensation shall be allowed.
17th 56th article of the trademark law of the Suppression of violations pay reasonable expenses, including the owner or authorized agent of violations investigated, evidence of reasonable costs.
people's Court according to the requests of the parties and the circumstances of the case, comply with the relevant departments of the State attorneys ' fees can be calculated within the scope.
18th of violations of the right to exclusive use of registered trademarks of limitation of two years, from the trademark registrant or interested party knows or should know the date on which the infringement. Trademark registrant or interested party more than two years to prosecute and prosecution if violations continued, during the term of the right to exclusive use of a registered trademark is valid, the people's Court shall make a judgment the defendant to stop the infringing act, damages for infringement rights court in amount calculated forward from the date of the second year.
19th trademark license contract without recordation with does not affect the validity of the licensing contract, unless otherwise agreed by the parties.
registered trademark licensing contract at the Trademark Office cannot be used against a bona fide third party.
20th before the transfer of a registered trademark does not affect the transfer of validity of the trademark license contract has been in force, but trademark except as otherwise agreed in the license contract.
21st article Court in trial violations registered trademark dedicated right disputes case in the, according to civil General 134th article, and trademark law 53rd article of provides and case specific situation, can judgment infringement people bear stop against, and excluded hamper, and elimination dangerous, and compensation loss, and elimination effect, civil responsibility, also can made fine, collection infringement commodity, and forged of trademark identifies and specifically for production infringement commodity of material, and tool, and Equipment and other property sanctions decision. The amount of the fine can refer to the People's Republic of China identified the relevant provisions of the regulations for the implementation of the trademark law.
industrial and commercial administration departments for the same have been given administrative punishment for violations of the right to exclusive use of registered trademarks, the people's Court no longer sanctions.
22nd article in the people's courts in the adjudication of disputes, according to the request of the parties and the specific circumstances of the case, can register whether a trademark is well-known by law involving a determination is made.
well-known trademarks shall be in accordance with the trademark law article 14th.
party was the administrative authority or people's Court determines that requesting protection of well-known trademarks, the other party agrees to relates to trademark the well-known, the people's Court to stop censoring. Challenge, the people's Court in accordance with the provisions of the trademark law article 14th review.
23rd article this explanation relating to commodity trademarks shall, apply to service marks.
24th before the relevant provisions consistent with this interpretation does not, is subject to this interpretation.