A few days ago, guangdong tall courtyard 2 careful careful writtened guarantee some appeals to Chen Mou Inc. of course of study of tea of Guangdong day pool (companies of next estate of tea of pool weighing a day) desk of issue of enroach on trade mark right (next weighing " day pool " brand case) . In this case, chen Mou some is " day pool " the obligee of literal registered trade mark, utilization category of this brand check and ratify is the 30th kind, include " tea, biscuit " . Chen Mou some highs with company of Chi Zhongfu of company of estate of day pool tea, day, path the company is used on the tea product in its production, sale and relevant webpage wait for a label to violate its trademark for special right, appeal to to the court, the request stops tort and recoup a loss. Guangdong tall courtyard is maintained via cognizance, some trade mark right that acquires in order to be not kindness is opposite Chen Mou of the tort that the appropriate use action of company of estate of day pool tea mentions appeal to, have the proper sex that violates honest credence principle and right exercise, constitute right abuse, the lawsuit that its and this concerns requests to should not get legal support.
The article will be united in wedlock " day pool " brand case, grab the person that note to mention to prevenient obligee with respect to ill will the appeal to processing principle of tort undertakes discussing.
Of prevenient right limits decide
According to trademark law thirtieth 2, application brand registers the prevenient right that must not damage other to have, also must not register other to had been used first with wrong step and have the brand of certain influence. "Prevenient right " be before showing in business mark registers an applicant to put forward brand to register application, the right that other has acquired and rights and interests, include law to have the prevenient right that provides clearly already, also include other the legitimate rights and interests that should grant to protect, specific include prevenient copyright, exterior to design name of the right such as authority of patent, full name, name authority and part figure, work, role title to wait for rights and interests. Whether does judgement damage the time place of prevenient right to contend for brand to apply for day to appeal to commonly. This is meant, application brand registers the prevenient right that should not damage other to have, must not apply for other acquired right to register as brand namely. In this case, company of estate of day pool tea will " day pool " the time that be registered as company name and uses is 2002, antedate tell the application day that contends for brand, the prevenient right that company of estate of day pool tea enjoys is " day pool " company name counterpoises. In the meantime, the application of company of estate of day pool tea in experience record label a few days ago already will " course of study of day pool tea " commercial label is outstanding on its tea product use, have certain force in place, accordingly, "Course of study of day pool tea " the brand that belongs to course of study of day pool tea to the company has been used and have certain effect. Day pool tea narrates the name and commercial label to enjoy legal prevenient right before estate company is right.
Prevenient obligee brand uses the property of behavior to maintain
Buy obstacle and acknowledge to decide promiscuously to whether be being caused to consumer. The basic function of brand is the origin of divisional commodity and service, the gender uses the brand of prevenient obligee to whether can create customer generation is promiscuous, hold the focal issue that whether makes brand tort for this case. In decide whether can arise promiscuous on this problem, whether should have legal prevenient right basis, use person to be in from use person subjective go up to whether have climb the intent that adds trade mark of the other side and go up objectively to whether can bring about consumer to produce promiscuous consequence this tripartite face undertakes integration analysis. Above all, as above, company of estate of day pool tea is enjoyed " day pool " prevenient company name counterpoises and " course of study of day pool tea " already used but the right that registers without brand, its have legal prevenient right basis. Next, to the subjective intent of company of estate of day pool tea, of company of estate of day pool tea " day pool " the name arises 2002, its came 2002 begin during 2005 will " course of study of day pool tea " commercial label is used on its tea product, through the use that lasts for a long time, its " course of study of day pool tea " tea product obtains many honor, have certain force in place. And to it contrary is, chen Mou some fails to offer evidence to prove its already used experience record label actually go up at corresponding tea product, although some proved Chen Mou,its tea product obtains numerous honor, but all honor are to be based on massive corporation " grandiose card " " phoenix hill card " wait for other trademark to obtain, with experience case " day pool " brand does not have any correlation. Company of estate of tea of friend day pool is climbed add Chen Mou label of some experience record is famous the view that spends an intent holds water hard. Finally, from the point of the particular use kind of company of estate of day pool tea, as a result of " day pool " the company name that itself is company of estate of day pool tea, and all the time with " course of study of day pool tea " for commerce the label is used on its tea product, company of estate of tea of friend day pool will " course of study of day pool tea " rather " " combination of registered trade mark uses the graph to go up at its tea product, going up objectively won't make this commodity comes from relevant consumer mistake at Chen Mou some, the source that won't identify commodity of tort be appealinged to correctly for average consumer produces obstacle and generation promiscuous.
Ill will is grabbed note decide standard
Grab the specific decision criteria that note about the ill will of brand, but from the following 3 respects undertake deciding: It is to be grabbed to note a person already prevenient use this label or enjoy other and prevenient right, 2 it is the brand that is grabbed to note has certain force, 3 it is to grab note a person to be in subjective go up to whether have ill will.
Of consequence decide the know position that needs to have rate, customer from the sale of commodity, market, put in the respect such as advertisement and relevant honor to undertake be judginged integratedly. Those who need an attention is, in decide " certain consequence " when, should consider bilateral and located region gender and famous spent relativity, answer measurable from wide hold, rob the proof demand that notes trade mark in order to reduce with wrong step, so that prevenient obligee checks brand is grabbed lawfully,note, reflect brand to register the spirit of due and real use intent, reveal ill will of people court keep within limits to grab forensic judicatory to direct. Subjective ill will can undertake deciding from the following element: It is to grab note a person to know perfectly well or should know to be grabbed to note a person prevenient use this brand to perhaps enjoy other and prevenient right. Be like both whether to make experience perhaps belong to the insider inside certain limits for relation of person of the same trade, Ceng Youge, if be general but illative grab note a person to have what know perfectly well or should know is subjective and intended, this is in trademark law also is able to fill fission to show in the 15th the 2nd section provision, namely " same the trademark that application of similar perhaps goods registers kind of commodity and other are prevenient use not registered trade mark is identical approximate perhaps, concern of dealings of the contract beyond provision of the section before applicant and this other are had, business is other perhaps concern and know perfectly well this other brand to exist, of this other demur, do not grant to register " . 2 it is to grab note a person to be a purpose in order to get undeserved benefit. This includes to serve as actively with inactive nonfeasance two respects, serve as actively include to grab after noting trade mark, undertake high price is made over, permit or put forward high specified number to compensate for a request; Inactive nonfeasance is to point to grab after noting trade mark, oneself do not undertake be used actually, repel other is used instead. Besides, grab if return existence to grab the corner act that records other and many label,note a person, have communal resource shockingly, also be the consideration ingredient that makes its have subjective ill will.
Afore-mentioned place list a few kinds of wrong steps, had used its are jointly at other of piracy of the person that note at grabbing but the trade mark that future must reach application to register or other and prevenient right, did not condense oneself wisdom and originality on the brand that they apply for to register, solid mask illegimate essence to use legal form, violated " honest credence " principle.
In this case, some and company of estate of day pool tea all are the same as Chen Mou at operator of goods of trade of the identical district of current state city, tea that be the same as a department, company of estate of Ju Tianchi tea is unit of local tea academician, and some is Chen Mou this association chairman, company of estate of tea of pool of some pair of days reachs Chen Mou its are prevenient enjoy " day pool " the name, " course of study of day pool tea " commercial label behoove understands completely, it is under this case, chen Mou applies for to register on some commodity that still is the same as a category in the 30th kind of photograph " day pool " brand, this kind violate honest credence principle grab record act, have subjective be not kindness. Next, some is grabbing Chen Mou note " day pool " after brand, fail to offer evidence to confirm its undertook be used actually again, repel other is used instead. Besides, via checking, chen Mou some with its oneself or the name of massive corporation still registered of all kinds trademark nearly 100, registered nearly 50 trademark on the 30th kind of commodity only among them. Visible, some brand registers Chen Mou behavior is not be based on its to produce registered need normally, and the ill will that has corner brand, shocking have communal resource, the market order that disturbed fairness competes, the company of estate of day pool tea of prevenient to having right also is suspected of existing unfair competition. Accordingly, some obtains Chen Mou and exercise " day pool " proper,the action of trade mark right calls hard. Some trade mark right that notes in order to grab is opposite Chen Mou of the tort that the appropriate use action of company of estate of day pool tea mentions appeal to, have the proper sex that violates honest credence principle and right exercise, constitute right abuse, the lawsuit that its and this concerns requests to should not get legal support. Ill will grabs the person that note to cannot adopt a form lawful seek profiteering.
In recent years, ill will is grabbed note brand trend increasingly serious, grab note a person to be grabbed through be being made over at high price note trade mark, mention the means such as compensation of high specified number of requirement of brand tort lawsuit gains profit, disturbed brand applies for to mix greatly use order, to sincere letter operator created needless cost and obstacle. The author thinks, should ill will of determined keep within limits is grabbed record brand act, strong and normative brand registers order, the fair competition order of the legitimate rights and interests that safeguards prevenient obligee and market. (Guangdong saves Wang Xiaoming of senior people court Zheng Yinghao)
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