(By Luo Yanjie) Our former trademark laws had not yet stipulated whether a prior user constituted trademark infringement against the exclusive right holder of a registered trademark. However, the implementation of the update Trademark Law this year solved the problem. In today’s post, we will introduce a typical case concerning the prior user succeeded in competing against the exclusive right holder. Even though the case was judged before the implementation of the update Trademark Law, its judgment was kept pace with legislative purpose of the update Trademark Law.
(By Luo Yanjie) Abstract:A trademark shall be distinctive and a rational use of the characters in a trademark does not constitute infringement. The 2013 version of the Trademark law clearly stipulates that where an identical or similar trademark has been used in connection with the same goods or similar goods by others before the registrant’s application, the exclusive right holder of said registered trademark shall have no right to prohibit other people from using the aforesaid trademark from continuous use of such trademark within the original scope, but may request its users to add proper marks for distinction.
(By Luo Yanjie ) Abstract: Generally, the trademark-right and the right of an enterprise-name are independent of each other. However, these rights, which also act as an enterprise-business-mark-right and are comprised of an intellectual property right, are likely to be so similar in their nature and characteristics that they may objectively cause disputes. To reach a judgment on whether there has been a breach of the principle of good faith and recognized commercial-morality as regulated in the anti-unfair Competition Law, the court would make a judgment based on the particular circumstances of a case.
(By Luo Yanjie) Due to the late establishment of the relevant law and system, the trademark squatting situation in China is quite serious, and much squatting is conducted by trademark agents or partners. Article 15 of the Trademark Law provides that:
“Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.”