Is it a trademark squatting?How to determine the act of trademark squatting

Jite intellectual property rights: 1. Domestic trademarksTrademark registration application.

Trademark renewal application,Trademark design application,

Application for Trademark Assignment,Application for Alteration of Trademark,Application for Trademark Replacement Certificate,

Trademark opposition applications, .Trademark Review and Adjudication Application 2, International Trademark,Madrid trademark registration application.

Trademark registration of the African Intellectual Property Organization. ③.

Single national trademark registration,Advantages and necessity of EU trademark registration, 1. Trademark rights are territorial: The territoriality of trademark rights refers to the trademark rights granted by a country or region in accordance with its own trademark law or the trademark treaty of the region, which are only valid in that country or region and are not binding on other countries or countries outside the region.

Although there are trademark international organizations and a number of regional trademark organizations, these organizations are not separate from ...

The meaning of the term "trademark squatting" has gone through two stages of development. In the first stage, trademark squatting is essentially limited to unregistered trademarks. At this stage, the connotation of trademark squatting has been further expanded, that is, the act of applying for registration of a trademark or well-known trademark that is already well-known to the public on non-similar goods or services is also a squarby.

Further, it can be considered that the act of applying for registration of other prior rights such as innovative designs, design patents, enterprise names and trade names, and the abbreviation of listed companies as trademarks should also be regarded as trademark squatting." However, due to the different objects of preemptive registration, the legal principles involved are also different: the former is the dispute between "prior application" and "prior use" of trademarks, and the main issue involved is the principle of the occurrence of trademark rights;The latter mainly deals with the scope of protection of "prior trademark rights" and the protection of "other prior rights", and also touches on the principle of the occurrence of trademark rights.

Some scholars believe that it is difficult to determine whether trademark squatting is an act of unfair competition, and that it is only legal but unreasonable. The reason is that the act of squatting only has some of the characteristics of an act of unfair competition. This is because although the act of preemptively registering a trademark that has been used by others and has created a reputation is an act that violates the generally accepted principles of business ethics and fair competition and obtains improper benefits, such improper benefits do not constitute damage to the legitimate rights and interests of others, because the law does not stipulate that the rights and interests due to the prior use of a trademark by others are protected by law.

In addition, the act of squatting is not deceptive or unjustifiable, because the principle of prior registration is implemented for trademarks, if you do not apply for registration first, others can of course apply for registration first, and it does not crowd out competitors, and the law does not stipulate that it is illegal, so there is no legal basis for determining that the act of squasquatting is an act of unfair competition.

"Bad faith preemptive registration" mostly occurs in the field of rights that can bring certain economic or moral benefits based on the principle of "first-to-file" authorization, so it mostly occurs in trademarks, domain names and trade names. With regard to "bad faith trademark squatting", 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".

Therefore, "bad faith preemptive registration" refers to the act of the applicant using unreasonable or illegal means to apply for registration of a trademark that has been used by others but has not yet been registered with the Trademark Office in its own name.

The social harm caused by bad faith trademark registration is very obvious, which is mainly reflected in the following three aspects:

1. Destroy the normal market competition order, seriously damage the economic interests of normal operators, and hinder China's transformation from a manufacturing economy to a brand economy. The essence of the malicious registration of a trademark is the misappropriation of the goodwill or reputation of others, or the illegal occupation of public resources, which will inevitably undermine the normal order of market competition. In order to deal with the malicious registration of trademarks, enterprises either repurchase them, or invest a lot of manpower and material resources to solve lawsuits, or register a large number of so-called "defensive trademarks" in advance, resulting in an unwarranted waste of economic resources.

The proliferation of malicious trademark squatting affects the cultivation of trademark popularity by legitimate business operators, and hinders or even stifles the formation of well-known brands.

2. It consumes a lot of trademark examination and judicial resources, and endangers the order of trademark registration and use. Due to the rampant prevalence of trademark squatting, including infringement of the rights and interests of others, occupation of public resources, and trademarks without real intent, the already overburdened trademark examiners and judicial personnel have made matters worse, seriously reducing the efficiency of trademark examination and litigation. China's trademark applications and holdings have ranked first in the world for ten consecutive years, and are still growing at an annual rate of 10%.

Due to the long period of trademark examination and the many prior trademark obstacles, it becomes difficult to apply for a normal trademark, which affects the establishment of a normal trademark order.

3. Seriously endangering the international image of China's intellectual property protection. For example, Japan's industrial economy has publicly stated its responsibilities, China's malicious trademark squatting is rampant, and the Italian Foreign Affairs Committee has made a special trip to China to crack down on fake Italian brands.

The first thing to do is to get to the bottom of a problem"Cybersquatting"It means preemptive registration, not that there is"Cybersquatting"The act will be dismissed, as stipulated in Article 31 of the Trademark Law"It is not allowed to preemptively register trademarks that have been used by others and have a certain influence by improper means"The starting point of this article is to oppose unfair competition, because you know the specific situation of your side so you can not make a specific judgment, here is a little advice to you, if you raise an objection, you can start from the following aspects:

1. Collect evidence that the other party is malicious and preemptive!

2. Collect materials to prove the influence of your brand, if your brand is already a household name in the local area, and the registrant is in the same region as you, then your winning rate is very high!

3. Prove that the registrant has an interest relationship with you!

Another thing I have to say is to pay attention to protect your rights so that similar situations do not happen again, and you must know that it is difficult to win if you have little influence!

If you feel that the probability of winning is not high, and the brand is more important to you, you can first recommend that you negotiate the transfer with the trademark registrant, and if the trademark registrant does not agree, then raise an objection!

In addition, the opposition period is 3 months from the date of the initial provincial announcement of the trademark, and even if your opposition is successful, the Trademark Office will only reject its exclusive rights on the products you have used, and the trademark registrant will still obtain all the exclusive rights on the products you are using.

If you are convenient to tell me the specific situation, you can contact me,. I can make a more specific and accurate analysis of your specific situation!

It is not allowed to preemptively register a trademark that has been used by others and has a certain influence by improper means, which means that it is not allowed to apply to the Trademark Office in its own name for a trademark that has been used by others but has not yet been registered in an unreasonable or illegal way.

Therefore, if your company wants to obtain the exclusive right to use the trademark, you have to file an objection and find sufficient and conclusive evidence such as the use of the trademark and the degree of influence of the trademark in society (of course, there is no precise limit to the degree of influence, be flexible, hehe). No matter how successful the success rate is, you have to try! After all, it took so long.

However, if you are worried that the opposition will not be successful, it is advisable to register a new one.

Another way is to find the other party to transfer or apply for withdrawal!

1. Not all of your unregistered trademarks and others are called squatting.

2. Legal Constitutive Elements of Preemptive Registration:

First of all, your trademark is used first, and there is a certain degree of popularity.

Second, someone else applied to register your trademark;

Third, the person applying for the registered trademark has subjective bad faith.

3. Trademark squatty registration must meet these requirements before it can be constituted.

Now if the trademark is registered by another company, you have no way to tell others, because you have not obtained the trademark registration certificate, and the only way is to buy back the trademark used by your company.

Your trademark has never been registered, how can it be preemptively registered?

1. How to determine the act of preemptively registering a trademark.

The act of trademark squatting is the act of preemptively filing an application for registration with the Trademark Office of a trademark that is identical or similar to an unregistered trademark that has been used by others and already has a considerable reputation, pointing out that it violates the principle of good faith for improper purposes and violates the principle of good faith.

Subjective malice, that is, the registrant knows that it is someone else's trademark, but also knows that the other person has not registered it, and the preemptively registered trademark is missing. This subjective malice can be judged from the following aspects:

Judging by the preemptively registered trademark. If the preemptively registered trademark is a trademark that is well known to the public, regardless of the way the pirate is plagiarized, copied or imitated, we can determine that the pirate is subjectively malicious and knowingly committed the act without the help of other evidence.

Judging by the motive or purpose of the cybersquatter. If the purpose of registering a trademark is not for its own use, but for transfer, especially to extort the preemptive registration, it can be judged that its act is "malicious preemptive registration". The above-mentioned Shenzhen pirates' behavior is clearly manifested in this kind of "bad faith preemptive registration", which has conducted a detailed study of the trademark status of the original user of the trademark before applying for registration, and after registration, has requested the original user to redeem the trademark price.

It can be judged from the main aspect of Fuchangtan. If the pirate is in the same or related industry as the squatter, we can basically infer the subjective "bad faith" of the pirate. In addition, if the two are located in the same area or not far from each other, and the former knows or cannot be unaware of the situation of the preemptively registered trademark, it can generally prove that the act of "bad faith squatting" is established.

2. Counterfeiting of unregistered trademarks.

Counterfeiting of an unregistered trademark refers to the unauthorized use of a trademark that is identical or similar to an unregistered trademark without the permission of the owner of the unregistered trademark and no other lawful basis. The main purpose of such an actor is to sell goods and services by imitating other people's brands, and to use the goodwill of others to seek improper benefits and competitive advantages. This kind of behavior will not only damage the legitimate interests of the owner of the unregistered trademark, but also cause consumers to confuse the goods or services of the two, and cause consumers to mistakenly recognize and purchase, which is also an act of unfair competition from the perspective of market competition.

3. Preemptively carry out other registrations.

That is, the act of registering an unregistered trademark as a trade name, domain name or design, or other commercial marks or intellectual achievement rights by a person who engages in the same or similar business as the owner of the unregistered trademark. At present, different courts apply different laws to different or even completely opposite conclusions on this conflict of rights, and the legitimate rights and interests of unregistered trademark owners may not be supported by the courts.

In determining the act of trademark squatting, the first step is to ascertain the attitude of the malicious squatter, and the main point of the court's investigation is whether the trademark registered by the squatter is a trademark that is more familiar to the public, or whether it is imitated and copied. Then, based on his motives, he will study whether it is an act of trademark squatting in bad faith.

1. Malicious snatching of trademarks refers to the use of improper means to take the lead in snatching the trademarks of others and preemptively registering them.

2. Or if you see someone else's trademark and have a certain influence, you want to use this trademark to register it first.

3. To put it simply, the person applying for a trademark uses improper and illegal means to take the lead in registering a trademark that has been used by others but has not been registered. The law also provides that if a certain amount of economic loss is caused to the right holder due to the malicious registration of a trademark by another person, the court may order the person who preemptively registered the trademark to compensate the right holder for certain losses.

Legal basis: Article 45 of the Trademark Law of the People's Republic of China.

If a registered trademark violates the provisions of Paragraphs 2 and 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30, Article 31 and Article 32 of this Law, the prior right holder or interested party may request the Trademark Review and Adjudication Board to declare the registered trademark invalid within five years from the date of registration of the trademark. For bad faith registration, the owner of a well-known trademark is not subject to a five-year time limit. After receiving an application for invalidation of a registered trademark, the Trademark Review and Adjudication Board shall notify the relevant parties in writing and submit a reply within a time limit.

The Trademark Review and Adjudication Board shall, within 12 months from the date of receipt of the application, make a ruling to maintain the registered trademark or declare the registered trademark invalid, and notify the parties concerned in writing. If there are special circumstances that need to be extended, it can be extended for six months with the approval of the administrative department for industry and commerce. If a party is not satisfied with the ruling of the Trademark Review and Adjudication Board, it may file a lawsuit with the people's court within 30 days from the date of receipt of the notice.

The people's court shall notify the opposing party to the trademark adjudication procedure to participate in the litigation as a third party. In the course of examining a request for invalidation in accordance with the provisions of the preceding paragraph, the Trademark Review and Adjudication Board may suspend the examination if the determination of the prior rights involved must be based on the outcome of another case that is being heard by the people's court or handled by the administrative authority. After the reasons for the suspension are eliminated, the review procedure shall be resumed.

Can you use a preemptively registered trademark to file an infringement complaint?

Yes, the principles of trademark registration have this provision: trademark registration needs to comply with the following principles:

1. The principle of combining voluntary registration and compulsory registration. Compulsory trademark registration goods shall not be sold in the market without approval and registration.

2. The principle of distinctiveness. The trademark to be registered shall have distinctive features, be easy to identify, and shall not conflict with the prior legal rights of others.

3. The principle of trademark legality. The trademark applied for registration must not use a sign prohibited by law. Trademarks that have been registered for the use of geographical names continue to be valid.

Without authorization, the ** person or representative will register the trademark of the ** person or the representative in his own name, and if the ** person or the representative raises an objection, it will not be registered and the use is prohibited. If the trademark contains a geographical indication of goods, and the trademark is not in the area indicated by the mark, misleading the public, it shall not be registered and its use shall be prohibited; However, registration that has been obtained in good faith will continue to be valid.