How to identify bad faith trademark squatting, and how to determine bad faith trademark squatting

The provisions of China's Trademark Law on the prohibition of bad faith preemptive registration reflect the common legislative purpose, that is, to uphold the principle of good faith and stop unfair competition. Bad faith is a common element for determining bad faith squatting and applying the above-mentioned legal provisions.

The determination of bad faith mainly considers but is not limited to the following factors:

The trademark of the respondent that the applicant knows or should know about the respondent due to the existence of **, representative, **, cooperation, geographical (regional) or other relationship with the respondent.

The respondent knows or should know the existence of the prior rights of others because of the well-known trade name, work, design, name, likeness and other factors for which the applicant is applying for the prior right.

If the applicant claims that the respondent has committed malicious preemptive registration of its trademark, the originality of the applicant's trademark needs to be considered.

The respondent knew or should have known the existence of the name of the tourist attraction or the name of the place of origin as a public resource because of the popularity of the name.

After the registration of the disputed trademark, the respondent obstructed the fair use of others for the purpose of obtaining improper benefits, demanded high transfer fees, license fees and infringement damages from others, or carried out misleading publicity, causing market chaos.

Article 32 of the Trademark Law of the People's Republic of China stipulates that an application for trademark registration shall not infringe upon the existing prior rights of others, nor shall it preemptively register a trademark that has been used by others and has a certain influence by improper means.

The purpose of the applicant's application for a registered trademark is to obtain improper benefits. This kind of bad faith trademark can be determined from the following aspects: whether the applicant uses it after successful registration, that is, whether it is used on its own products, and whether the products are similar or similar to the products of the pirated registration; See whether the applicant transfers or licenses the preemptive registration party to use the trademark; See whether the applicant directly accuses the squatter of infringement and file a claim for compensation.

As long as it can be proved that the popularity of the prior trademark covers the squatter, and the squatter's knowledge of the prior trademark, it can be determined that the act of squatting is an act of malicious registration.

Article 31 of the Trademark Law stipulates that "it is not allowed to preemptively register a trademark that has been used by others and has a certain influence by improper means".

First of all, you have to prove that the other party's subjective aspect is to seek improper benefits. The method of determination is usually 1to see whether he uses it for his own use after successful registration, that is, for his own products, and whether such products are similar or similar to the products of the pirated person; 2.

whether to transfer or license the use of the trademark to the pirated person; 3.Whether it directly sues the squatter for infringement and files a claim for compensation.

Second, prove that the other party has taken improper means. Identification method: 1

The applicant takes advantage of the relationship with others who are traveling with others. 2.Draw on the background of previous collaborations with others.

3 Other people in the same area who know the inside story. Taking advantage of its different conditions and its own advantages, such as managers, legal advisers, journalists, trademark owners, etc., they can understand the use of the operator's trademark in the process of news interviews or management, and can foresee the benefits brought by the preemptive registration of the trademark and preemptively register.

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Legal analysis: First, to see whether he used it himself after successful registration, that is, used it on his own products, and whether such products were similar or similar to the products of the pirated registration; second, whether to transfer or license the use of the trademark to the pirated registrant; The third is whether it directly sues the preemptive registrant for infringement and submits a request for compensation.

Legal basis: Article 32 of the Law of the People's Republic of China on the Matching of Trademarks Article 32 The application for trademark registration shall not infringe upon the existing prior rights of others, nor shall it be used by improper means to preemptively register trademarks that have been used by others and have a certain influence.

The method of determining that the applicant constitutes a bad faith trademark preemptively: the actor adopts improper means to preemptively register the rights of trademarks, domain names or trade names that have been used by others in the field or related fields and have a certain influence for the purpose of making profits. Moreover, the act of concealing reputation caused the trademark owner to suffer actual losses.

[Legal basis].

Article 4 of the Law of the People's Republic of China on the Marking of Commercial Stove Sections.

If a natural person, legal person or other organization needs to obtain the exclusive right to use a trademark for its goods or services in the course of production and business activities, it shall apply to the Trademark Office for trademark registration. An application for registration of a trademark in bad faith that is not for the purpose of use shall be rejected by Hongliang.

The provisions of this Law relating to commodity trademarks shall apply to service trademarks.

Article 5. Two or more natural persons, legal persons or other organizations may jointly apply to the Trademark Office for registration of the same trademark, and jointly enjoy and exercise the exclusive right to use the trademark.

Article 6. Goods that must use registered trademarks according to laws and administrative regulations must apply for trademark registration, and those that have not been approved for registration shall not be sold in the market.

The so-called bad faith squatting refers to the act of preemptively registering trademarks, domain names, trade names and other rights that have been used and have a certain influence by others in the field or related fields for the purpose of making profits.

With regard to the determination, as long as the actor's conduct meets the conditions for validity, it is found to constitute bad faith squatting

1. The purpose of the applicant to apply for a registered trademark is to seek improper benefits. This subjective malice can be determined from the following aspects:

1. See whether the applicant uses it for his own use after successful registration, that is, on his own products, and whether such products are similar or similar to the products of the pirated registration;

2. See whether the applicant transfers or licenses the trademark to the squatted party;

3. See whether the applicant directly sues the preemptive registration party for infringement and submits a request for compensation.

2. The applicant has adopted improper means. Mainly refers to the following means:

1. The applicant takes advantage of the relationship with others. Small and medium-sized enterprises are the most vulnerable to cybersquatting. Because when small and medium-sized enterprises launch their own products to the market, they often do not register trademarks before launching products, but more often register trademarks when their products have a certain impact.

2. Taking advantage of the background of cooperation with others, during the cooperation period, that is, secretly registering the trademark of the collaborator as their own, and some of them preemptively registering the trademark of the collaborator after the end of the cooperation.

3. Take advantage of its different conditions and own advantages, such as managers, legal advisers, reporters, commercial rubber labels, etc., to understand the use of the operator's trademark in the process of news interviews or management, and can foresee the benefits brought by the preemptive registration of the trademark and preemptively register.

3. The registered trademark of the applicant for preemptive registration has been successfully registered.

Legal basis] Article 32 of the Trademark Law, an application for trademark registration shall not infringe upon the existing prior rights of others, nor shall it preemptively register a trademark that has been used by others and has a certain influence by improper means. Next to Petan.