By Luo Yanjie
Previously, our website introduced issues of trademark and patent in China exhibition: Legal Issues concerning Trademark during the Exhibition in China, Patent Issues for Attention on the Exhibition in China. Recently, a customer told our attorneys that they found a company using their registered trademarks for the promotion on similar goods in an exhibition. The company learned a little Chinese law and they know only Chinese patent law provides that “offer to sell” is infringement. So they ask our advice about that if using other’s registered trademarks constitute trademark infringement?
It is similar with “offer to sell” in patent law for using other’s registered trademarks on the similar goods in an exhibition. “Offer to sell” is a behavior means want to sell a product. According to the “patent law”, Promising to sell products with others’ patent constitutes patent infringement. “Trademark Law” does not have similar regulations. Whether using other’s registered trademarks constitute trademark infringement? Today we would lake to share with readers as follows:
I. To show other’s registered trademark has caused damage to right people
A trademark is a sign used by producer in production, manufacturing, processing, selection or distribution. The most important role of trade mark is to distinguish “different sources of goods or services”. Even not selling goods actually, demonstrating other’s registered trademark in an exhibition also can make the consumers mistake that the demonstrator has the registered trademark, or misconnect it with the right owner. The objective existence of “confusion” will undoubtedly seriously damage the registered trademark’s function of “distinguishing different sources of goods or services”, and thereby damage the legitimate interests of right owner. Therefore, even only considering the veracious consequence, the law should prohibit unlicensed display of the trademark.
II. Despite no specific legal regulation, it could be deducted from law that any unlicensed display of trademark could damage others’ trademark law
Article 52 of “Trademark Law” provides that,
“Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:(1) using a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods without the authorization from the trademark registrant;”
According to the rules, if demonstrating other’s registered trademark in an exhibition is a kind of “use” of “trademark law”, we can determine that it is an infringement. From the “trademark law” and the relevant laws and regulations, the answer is Yes:
1. As to the clauses concerning “priority” in “trademark law”, it gives six months priority to the trademark used in China government recognized exhibition. The law also adopts the word of “use”. Therefore, to show up other’s registered trademarks in an exhibition shall be the “using a trademark”.
“Trademark Law” Article 25: Where a trademark is first used for goods in an international exhibition on sponsored or recognized by the Chinese Government, the applicant for the registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods.)
2. The “Trademark Law” provides that if the trademark ceased using for continuous 3 years, it can be canceled. In the “Notice on Demonstration of Trademark Using” by Trademark Office, it clearly stipulates that “trademark printing and information, photographs in exhibitions held by all levels of government” belong to “trademark using evidence”. Thus, demonstrating other’s registered trademark in an exhibition belongs to “using a trademark”.
Therefore, no matter for the damage caused to the right owner, or the existing legal provision, to display other’s registered trademarks in the exhibition is kind of trademark infringement. The right holder may take an administrative complaint according to the law or take a civil prosecution after the exhibition.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.
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