What Is The Judicial Identification Process Of Well-Known Trademarks?

Judicial recognition of well-known trademarks is a common practice in the world.

After China's accession to the WTO, in order to integrate with the international community and fulfill its WTO commitments, the sixth interpretation of the Supreme People's court's interpretation of the Supreme People's Court on several issues applicable to the civil disputes involving computer network domain names adopted by the Supreme People's court in June 2001 stipulates: "the people's court hears the domain name dispute cases, and according to the request of the parties and the specific circumstances of the case, it can identify the registered trademarks in accordance with the law."

In December 2002, the Supreme People's Court adopted the twenty-second interpretation of the Supreme People's Court on Several Issues concerning the application of law in Trademark Civil Disputes: "in the trial of trademark disputes, the people's court may, in accordance with the request of the parties and the specific circumstances of the case, make a determination of whether the registered trademark is famous or not."

At this point, China has given the people's courts the right to judicial recognition of well-known trademarks in the form of judicial interpretation, which changed the original practice of the State Trademark Office's single identification of well-known trademarks, and realized the dual track system of combining judicial identification with administrative recognition of trademark authorities.

At the same time, in order to adapt to the judicial interpretation of the Supreme Court, the State Administration for Industry and Commerce in April 17, 2003 revised the "Interim Provisions on the recognition and management of well-known trademarks" in a timely manner, and promulgated the new regulations on the identification and protection of well-known trademarks. In the new regulations, the original Trademark Office of the State Administration for Industry and commerce only deleted the contents of the only organ that recognized the well-known trademarks, and made detailed provisions on the concept of well-known trademarks and the evidence of well-known trademarks.

At present, the province has identified 4 well-known trademarks through this way, and more than ten cases are being prepared for application.

Due to the influence of traditional ideas, most of the enterprises that run brands in China do not necessarily know clearly the new way of "judicial identification of well-known trademarks", but also do not know what conditions their trademarks need to have. They may be identified as well-known trademarks by the courts. Some have fully possessed the "well-known" conditions, but because of the trademark holders' ignorance of the "judicial recognition" procedure, they have missed many opportunities to make their trademarks "well-known" trademarks.

Experts believe that the judicial recognition of well-known trademarks should be fully studied by enterprises in our province, because whether a trademark is recognized as a well-known trademark is of great significance to the protection of International Cross category rights and interests.

According to the law, the scope of protection of well-known trademarks is larger than that of general trademarks.

As a well-known trademark, it can not only crack down on cross category trademark infringement, but also be responsible for using the well-known trademark registration enterprise name, Internet domain name and other special infringement acts.

It can even protect foreign well-known trademarks not registered in China, and foreign countries also protect well-known trademarks that are not registered in their country.

However, the implementation of administrative lot recognition in the industrial and commercial sector involves the restriction of the total quota and the balance of industries and regions. Moreover, a company has to spend at least two years from a well-known trademark to a famous trademark in the province and then to a well-known trademark in China.

Such complicated procedures and long span make many enterprises shrink from it.

Judicial identification marks the beginning of China's integration with international practice. The well-known trademark has changed from administrative batch recognition to administrative or judicial case recognition.

In fact, from a worldwide perspective, most famous trademarks in most countries are determined by courts.

The fourteenth article of the trademark law stipulates the five factors that should be considered in identifying well-known trademarks, including the public awareness of trademarks, the time of continuous use of trademarks, the extent and scope of publicity, and so on. This is a necessary condition for identifying well-known trademarks. Judges' discretion must also be exercised within the scope of the law.

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At present, the court of China finds that a well-known trademark is a passive principle and a case recognition principle.

The case principle, known as the well-known trademark in the court judgment document, has only effect on the case and does not necessarily affect other cases.

The people's court finds that a well-known trademark is treated as a fact that needs to be identified in a trial case. The party's request for the identification of a well-known trademark requires the court to find out the facts and not to constitute a separate claim.

Therefore, the parties concerned shall provide corresponding evidence to the people's court in accordance with the requirements of the fourteenth article of the trademark law.

In the judicial cognizance of well-known trademarks, according to the regulations on the recognition and protection of well known trademarks promulgated by the State Administration for Industry and Commerce in April 17, 2003, there are four criteria:

(1) the geographical scope of well-known trademarks -- "China".

The provisions on the identification and protection of well-known trademarks clearly stipulate that the geographical scope of well-known trademarks is "China".

This regulation is in line with China's national conditions, because the trademark right has a strong regional character. This regulation does not violate the spirit of the Paris Convention and the Trips agreement, and can effectively protect the interests of our country.

In recent years, a few developed countries led by the United States have emphasized that judging whether a trademark is "famous" should be based on whether the trademark is well-known in the international market.

If a trademark is well known internationally, even if there is not much visibility in a particular country, the country should also consider the trademark to be a well-known trademark.

Obviously, this view is beneficial to a few developed countries. Because of the difference in economic strength between the developed countries and the developed countries, abandoning the regionality of trademark rights will damage the interests of developing countries and make them in a real unfair position in international competition.

(two) the public's awareness of it is "widely known to the relevant public".

The second article and second paragraph of the regulations on the identification and protection of well-known trademarks point out: "the relevant public includes consumers who are related to certain commodities or services marked by the trademark, producing the foregoing commodities or other operators providing services, as well as the sellers and relevant personnel involved in the distribution channels.

"This regulation conforms to the relevant international standards, and the definition of" relevant public "is also very precise.

In the specific operation, the extent of "being widely known to the public" can be determined by consumer surveys or public opinion surveys, and it can also be proved through the investigation of the duration, degree and geographical factors of the use of trademarks.

At the same time, the five cognizance factors of the fourteenth articles of the new trademark law are: "the degree of awareness of the relevant public to the trademark", and the remaining four are the relevant factors to prove the degree of "awareness".

However, it is not necessary to have five factors to identify well-known trademarks. As long as a few of them can prove that "the relevant public is widely known", they can serve as a strong basis for identifying well-known trademarks.

The provisions of the cognizance and protection of well-known trademarks third, according to the fourteenth article of the trademark law, make more specific provisions on relevant contents, which is conducive to the operation in practice.

China's current regulations and the International Trademark Association in September 18, 1996 passed the "well-known trademark protection bill" to determine whether a trademark is well-known, the relevant standards are basically the same.

(three) the question of "enjoy a higher reputation" - law should not only protect the strongest.

"Enjoy a high reputation" includes three aspects: first, reputation; reputation refers to reputation and reputation, described as public awareness.

Second, it has a high reputation. "Higher" means that the breadth and extent of knowledge are large, not ordinary.

Third, the word "reputation" also contains a positive appraisal of the public, that is, a "higher reputation" includes a positive evaluation of the quality of goods or services added to the trademark.

From the relevant contents of the third provisions of the above provisions, we can see that the identification of well-known trademarks in China now focuses on "the public's awareness of the trademark".

As for the "enjoy a high reputation", the content of the provisions is not specifically put forward, but it is regarded as a discretion factor when the authorities concerned identify the well-known trademarks.

Therefore, the author believes that the well-known trademarks in China's current legislation include general well-known trademarks and famous trademarks.

(four) a well-known trademark should not be required to be a registered trademark. The emergence of a well-known trademark is an important supplement to the trademark registration system.

The new trademark law does not rigidly adhere to the principle of trademark registration protection. In the thirteenth first paragraphs, it is stipulated that the trademark "apply for registration on the same or similar commodities" is a copy, imitation or plation of a well-known trademark which has not been registered in China. It is easy to cause confusion and will not be registered and prohibited.

The new trademark law protects the unregistered well-known trademarks, which makes up for the inherent defects of the trademark registration system in the protection of well-known trademarks, and takes a positive step towards the protection of well-known trademarks.

From the above definition, we can see that the protection of well-known trademarks in China's current legislation is no longer confined to registered trademarks only, which conforms to relevant international practices and effectively protects well-known trademarks.

With the development of China's market economy,