Legal Daily, Beijing, June 26-The draft amendment to the Trademark Law, which was submitted to the Third Session of the 12th the National People’s Congress Standing Committee (NPCSC) for further deliberation today by reporter Xi Fengyu, has new provisions in improving the protection system of well-known trademarks.
Prior to this, the 30th meeting of the 11th the National People’s Congress Standing Committee (NPCSC) first considered the draft amendment to the Trademark Law. After the meeting, the NPC Law Committee revised the draft amendment according to the deliberation opinions of the members of the Standing Committee and opinions from all sides.
Some members of the Standing Committee, localities, departments and enterprises have pointed out that there is a misunderstanding of taking well-known trademarks as an honorary title in practice, blindly pursuing the identification of well-known trademarks, and even resorting to fraud and other drawbacks. It is suggested that the connotation of well-known trademarks should be further clarified, and advertising with well-known trademarks should be prohibited in accordance with the principle of "case identification and passive protection" to avoid misleading consumers.
After research, the Law Committee of the National People’s Congress suggested adding regulations to improve the protection system of well-known trademarks. The new draft clearly stipulates that the holder of a trademark that has been used continuously for a long time and is well known to the relevant public may request the protection of a well-known trademark in accordance with the provisions of this law when he thinks that his rights have been infringed. At the same time, the new draft emphasizes that producers and operators shall not use the words "well-known trademarks" in commodities, commodity packages or containers, or in advertising, exhibitions and other commercial activities.
Delete the stipulation of single-color registered trademark
Legal Daily, Beijing, June 26-Reporter Xi Fengyu’s new draft amendment to the Trademark Law deletes the provision that a single color can register a trademark.
According to the original draft, a single color used in a commodity or its packaging can be applied for registration as a trademark if it can be distinguished from other commodities through its use. Some localities, experts and enterprises have suggested that the resources of single color are limited, and there are only over 100 colors that ordinary people can recognize. If a single color trademark is allowed to be registered, it may cause the trademark registrant to monopolize the color. At the same time, it is more difficult to distinguish the source of goods through a single color, which is easy to cause confusion in practice. We do not agree with such a provision.
The Law Committee of the National People’s Congress believes that in practice, Chinese enterprises have not yet registered a single color as a commodity, and there is also a lack of corresponding practice in trademark registration and management, so it may not be stipulated in the law for the time being. Accordingly, the provisions of the original draft that a single color can be registered as a trademark were deleted.
Clearly stipulate the well-known trademark recognition authority.
Legal Daily, Beijing, June 26 th, reporter Xi Fengyu’s draft amendment to the new trademark law clearly stipulates the well-known trademark recognition organs and recognition links.
The draft stipulates that in the process of trademark registration examination and the investigation and handling of cases of infringement of the exclusive right to use a registered trademark by the administrative department for industry and commerce, if the parties claim their rights in accordance with the provisions of this law, the Trademark Office may determine the well-known situation of the trademark according to the needs of examination and handling of the case. In the process of handling trademark disputes, if the parties claim their rights in accordance with the provisions of this Law, the Trademark Review and Adjudication Board may, according to the needs of handling the case, make a determination on the well-known situation of the trademark. In the trial of trademark civil and administrative cases, if the parties claim their rights in accordance with the provisions of this Law, the people’s court designated by the Supreme People’s Court may, according to the needs of handling the case, make a determination on the well-known trademark.
An agency organization may not register its own trademark.
Legal Daily, Beijing, June 26-Reporter Xi Fengyu’s draft amendment to the new trademark law has added a number of provisions to regulate trademark agency activities and curb malicious trademark registration.
Some localities, departments and enterprises suggest that some trademark agencies violate the principle of good faith in practice, use their business advantages to help clients register malicious trademarks, and even maliciously register others’ trademarks for profit. It is suggested to further standardize trademark agency activities.
After research, the NPC Law Committee suggested adding four aspects. First, if it is clear that the trademark applied for registration by the client may not be registered according to the provisions of the Trademark Law, the trademark agency organization shall clearly inform the client. The second is to stipulate that a trademark agency organization shall not accept the entrustment if it knows or should know that the trademark applied for registration by the client belongs to malicious cybersquatting or infringes on the prior rights of others. Third, it is clear that trademark agencies may not apply for registered trademarks for profit on their own. Fourth, the Trademark Office and the Trademark Review and Adjudication Board may decide to stop accepting the trademark agency business of trademark agencies that violate the legal provisions and the principle of good faith, and the circumstances are serious, and make an announcement.
Increase the time limit for trademark registration review
Legal Daily, Beijing, June 26 th, reporter Xi Fengyu’s draft amendment to the new trademark law aims at the problem that the waiting time for enterprises to apply for trademarks is too long, which leads to the uncertainty of the trademark rights and interests of enterprises, and adds the provisions on the time limit for trademark registration review.
Some localities, departments and enterprises have suggested that the time limit for examination of trademark registration is not stipulated in laws, administrative regulations and departmental rules at present, and the examination time is long in practice, resulting in the long-term uncertainty of the trademark rights and interests of enterprises. It is suggested that the time limit for examination be clarified.
After study, the Law Committee of the National People’s Congress proposed to increase the provisions on the time limit for examination, namely, the time limit for preliminary examination by the Trademark Office is nine months, the time limit for announcing the objection is three months, the time limit for investigating and verifying the objection application is nine months, the time limit for the Trademark Review and Adjudication Board to review the trademark office’s decision not to announce the application is six months, and the time limit for reviewing the trademark office’s decision not to register if the objection is established is nine months; There are special circumstances need to be extended, approved by the administrative department for Industry and Commerce of the State Council, can be appropriately extended.
In addition, the new draft has made corresponding provisions on the examination time limit for the invalidation and revocation of trademarks.
Further enhance the operability of trademark law
Legal Daily, Beijing, June 26 th Reporter Xi Fengyu In order to enhance the operability of the trademark law, according to the opinions of relevant parties, some provisions have been added or deleted in the draft amendment to the new trademark law.
The two provisions added in the new draft are to raise the relevant provisions concerning the civil rights of the parties in the implementation regulations of the Trademark Law to law. It is stipulated that a trademark that is approved for registration after the objection is not established after examination shall not have retrospective effect on other people’s use of the same or similar marks on the same or similar goods from the date of expiration of the objection to the trademark until the decision to approve the registration is made. Another provision is that if a registered trademark is transferred, the registrant shall transfer the same or similar trademark registered on the same or similar goods together. The Trademark Office shall not approve the transfer that is likely to cause confusion or have other adverse effects.
The new draft has deleted the relevant provisions for the contents that have been clearly stipulated in the civil procedure law, product quality law and other laws. For example, before the prosecution, the people’s court should be ordered to stop the relevant acts and the procedures for applying for evidence preservation, and the norms for shoddy goods and cheating consumers are no longer stipulated.
The maximum amount of tort compensation is raised to two million.
Legal Daily, Beijing, June 26-Reporter Xi Fengyu’s draft amendment to the new trademark law has revised the relevant provisions on the exclusive right to use registered trademarks, especially for the amount of compensation, and has absorbed many opinions to raise the upper limit of the amount of compensation from the original one million yuan to two million yuan.
Some members of the Standing Committee, localities, departments and enterprises have suggested that in order to strengthen the protection of the exclusive right to use registered trademarks, the illegal cost should be increased and the crackdown on trademark infringement should be intensified.
After research, the NPC Law Committee proposed to increase the legal compensation for infringement cases. It is stipulated that if it is difficult to determine the actual losses suffered by the obligee due to infringement, the interests gained by the infringer due to infringement, and the license fee for registered trademarks, the people’s court shall award compensation of not less than 20,000 yuan but not more than 2 million yuan according to the circumstances of the infringement.