On June 27, 2017, " People's Daily " in head of the 10th edition print hair country is industrial and commercial the signed article of Zhang Mao of secretary of total bureau leading Party group, director " raise understanding to clarify an error, implement brand brand strategy actively " , point out clearly among them: "The understanding to well-known logo, famous label, famous label and practice still exist a few errors and deviation, ... by the government the organization is chosen maintain, it is to use credit of force of governmental public letter, government to assure for individual business endorse, ... the basic principle that violated market fairness badly to compete. " we think, review local government to evaluate famous label behavior again today, must the place of thorough analysis problem, also should be comprehended somewhat from which at the same time and think [1] .
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One, famous label evaluation holds the place devoid basis
(one) without legal basis
Famous label is not concept of a law. Although theoretic have famous brand say, each district also is in be very happy with it ground assess is famous brand, but our country " trademark law " only this entirely misses celebrated trade mark, without the regulation of famous label.
Actually, "Famous label " the intellectual property that both neither is international convention regulation protects a boy or girl friend, also not be the boy or girl friend that legislation of our country intellectual property wants to protect. [2] in practice, a lot of our country provinces, the Chinese system of weights and measures decided the cognizance about famous label and protective way, it is a basis with this, each province judges the famous trade mark that gives this province, but country " trademark law " wait for relevant law to did not set " famous label " choose, cognizance matters concerned. [3]
(2) with the illicit of trade mark right authority sex photograph is contrary to
Our country promulgated 1987 " civil code general rule " intellectual property the regulation is a kind of civil rights. Carried out on October 1, 2017 " civil code general principles " the 123rd more specific provision: "Civil main body enjoys intellectual property lawfully. " and the most influential international convention, namely 1994 " the intellectual property deliberation that concerns with commerce " admit clearly in the preface also " intellectual property is illicit authority " .
Since intellectual property (include trade mark right) for civil rights, it is authority of a kind of illicit, should be obtained lawfully by civil main body and exercise, the government sector should supervise the brand market action of obligee lawfully, and do not answer to undertake evaluating cognizance to the brand of civil main body directly, will affect the public letter force of the government sector otherwise, destroy order of market fairness competition.
2, famous label evaluates the place the main problem that in maintaining, exists
(one) deviate from " case maintain, passivity is maintained " principle, famous label " fly all over the sky "
According to the regulation of method of a few places, maintain famous label to execute freewill application, putting in actual trademark right to fall about the circumstance of dispute namely, want regulation of place of according to of person of right of registered trade mark to offer the application that famous label maintains only, the place is industrial and commercial administration bureau answer the regulation according to the place, undertake cognizance.
Because famous label can give obligee to bring certain market benefit, person of right of registered trade mark wants oneself brand makes famous trade mark. Then, the person of trade mark right of large quantities of quantities applies for to hold a place famous label. Meanwhile, the place maintains an orgnaization to set out inevitably from interest of this locality economy, this locality one of more or less regards economy as development speed marks of famous label amount, bring about famous label finally " fly all over the sky " random elephant. [4]
(2) influence market fairness competes, harm consumer interest
Look from the specific provision of each district, each district basically thinks famous label must be registered trade mark above all, must accord with certain other condition in addition. But what develop as a result of economy is apparently lopsided, each district maintains the condition of famous label to agree impossibly also. If be maintained about application,use time actually of the registered trade mark of famous label, " famous label maintains the the Xizang Autonomous Region as temporary as management measure " the 9th regulation, one of requirements that file famous label are " actual operating period is full since the day that this brand registers from approve 3 years " ; " Liaoning province is famous brand is maintained and protect way " the 7th regulation, filing one of requirements that hold famous trade mark is " this brand already was registered and use a year of above actually " . Be like the condition about famous label applicant again, " Yunnan province is famous brand is maintained and protect way " the 5th regulation, apply for famous label " everybody of registered trade mark is register in this province individual and the business that register, institution, industrial and commercial door " ; " famous label maintains Hunan Province and protect way " the 5th sets: "The brand that the everybody of registered trade mark that saves churchyard originally thinks its are registered accords with this method of the 4th rated condition, all can apply for to hold famous trade mark. The company of type of production that in me the province creates is permitted to use the registered trade mark of everybody of the registered trade mark outside the province, ... also can apply for to hold famous trade mark. ... also can apply for to hold famous trade mark..
Apparent, each district is famous to application of brand " registered trade mark uses time " and " applicant " the requirement provision that waits for a respect is different, although this was reflected local, but the characteristic of the oneness that violated the market however, open sex, affected the market fairness between operator to compete, harmed the interest of consumer.
(3) use written evaluation means, affect the objectivity of famous label
According to the regulation of each district, what famous label cognizance method basically adopts is the enterprise applies for of one's own accord and the newspaper sends concerned proof material, through examining written material, clique by cognizance orgnaization the person goes to partial enterprise to understand a situation, the working method that the cognizance committee that forms by cognizance orgnaization finally has final judgment is maintained. Because hold office,basically be the cognizance outcome that knows a circumstance to decide famous label from written material, the famous label that exists to be maintained likely not only is not the circumstance of the registered trade mark that has particular market effect actually, put possibly even in the famous trade mark that holds to return the case that corresponding without its commodity appears in the market.
Apparent, written cognizance means has very strong subjective sex, affect the objectivity of holds famous trade mark necessarily. And whether does a registered trade mark make famous trade mark because of certain market impact, either pass by concerned executive authority written examine what can maintain, and should be decided by the market.
(4) enlarge a place famous label protects range, those who violated well-known trademark is local
Base area just sets or method chooses the famous label on our country market, behoove gets inside local limits special protection. But the method regulation of many places exceeded this locality range actually to the special protection of famous label, if a few places set " famous to the place brand is special between place and place of protection harmonious " wait for content, besides the location limits that the place the effectiveness limits of famous label enlarges famous label to be maintained, [5] what this violated well-known trademark apparently is local.
(5) the place the application link up with of famous label and well-known logo, with " trademark law " the regulation nots agree with
The method of each district set almost in the regulation " the place is distinguished brand general by preferential recommend enter a country of well-known logo maintain " wait for content. [6] the applies link up with method of will famous label and well-known logo, both neither accords with objective fact, also with " trademark law " the regulation nots agree with. Above all, although a registered trade mark is objective on accorded with a place the condition of famous label, person of right of registered trade mark also may not applies for to hold famous trade mark certainly. That is to say, did not apply for a place the cognizance of famous label, it is certain to do not mean this registered trade mark the market reputation of famouser than the place label is poor, more do not mean it to cannot apply for to make celebrated trade mark. Next, our country is active " trademark law " " trademark law carries out byelaw " and " the cognizance of well-known logo and protective regulation " in all do not have " the celebrated trade mark that is held must be a place famous label " " famous to the place label is preferential maintain " wait for similar provision.
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3, after famous label holds doubt place " trademark law " think
Our country " trademark law " in not " famous label " concept, but set " the brand that has certain effect " [7] . " trademark law " mix the 59th the 32nd times the 3rd, involve not of registered trade mark " prevenient use " and " have certain effect " . But about " prevenient " time limit and " have certain effect " cognizance standard, " trademark law " reach its " executive byelaw " without further regulation. We think, answer to register protective principle according to brand, absorb a place to evaluate the regulation of famous label, consult the cognizance element of well-known logo, in " trademark law " make clear in judicatory explanation not registered trade mark " prevenient " time limit and " have certain effect " cognizance standard.
(one) learn manage to go up about " the brand that has certain effect " understanding is ambiguous
The scholar thinks, alleged " have certain effect " , it is to point to relevant public place is inside specific district limits witting. Demur person can prep according to " trademark law " the 14th regulation about well-known logo provides evidential data, in order to proves its brand has certain effect. Because be in judicatory practice, decide " have certain effect " , it is right actually prevenient use brand is had famous one kind when spend is approbated, because this is in brand demur case, right " certain influence " maintain relatively careful [8] .
Still the scholar thinks, " trademark law " for not the premise that registered trade mark provides protection, depend on prevenient use person is based on his to be opposite not of registered trade mark use, already produced need " trademark law " protective interest, and the generation in principle of this kind of interest does not need this brand to have relatively Gao Zhi name is spent, also do not ask its are famous degree already extended to bigger district range. Accordingly, normally the circumstance falls, if make choose and employ persons right of its brand using is true truly use, and already made through using brand rises to identify function inside use district, criterion the necessity that this brand had protection. Accordingly, this brand already obtained this provision in " certain influence " requirement [9] .
Apparent, the difference with the cognizance standard constant presence that place of two kinds of viewpoints maintains. Before one kind of viewpoint thinks: "Relevant public place is inside specific district limits witting " , indicate the effect with have certain; A kind of viewpoint thinks after, as long as true use and rise to identify function inside use district, can achieve " have certain effect " standard.
(2) in solid Wu about " prevenient the brand that use and has certain effect " cognizance standard is skimble-scamble
With two particular case is exemple:
1. " then limited company of imports and exports of handkerchief industrial product and Fudiweixite pass Changzhou red feeling industry is controlled (Tianjin) limited company (Nahexite passes Yuan Mingdan feeling industry is controlled) , Beijing Baidu
About " prevenient " maintain. Court of first instance registers application day to undertake for the bound with brand " prevenient use " maintain, namely " the fact that the accused puts in use brand before accuser applies for registered trade mark " ; And 2 careful court with in fact use time undertakes cognizance for the bound, namely " prevenient use behavior should antedate the trademark registrant is right the use behavior of brand " .
About " have certain effect " maintain. Court of first instance, 2 careful publicizes the respect such as limits to maintain from sale object and limits, advertisement " have certain effect " . In addition, 2 careful court returns the otherness from commodity and service to conclude further, think " the negotiability with commodity and service stronger than having photograph, sell to other region from the agency of a certain district likely completely current " , produce certain effect thereby.
2. " He Minghe and dispute of trade mark right of enroach on of guesthouse of Sa Fei Er of iron mountain city " [11] case
In the cognizance of this case, when court of first instance is judging prevenient sex, also be bounds in order to apply for day. Court of first instance is maintained, guesthouse of Er of humble of the accused Sa holds water at was being registered on September 27, 2012 and begin to use " 5 houses photograph joins " assorted design and " Safeier " artistic form of a written or printed character, the act that the accused uses design and literal combination label in manage antedates the approve date of accuser brand, yi Zao applies for to register date at the brand of accuser.
Judging prevenient when whether use label has certain effect, court of first instance with " management state " for the standard, namely " the evidence that provides from both sides of former, the accused and bilateral allegation can see the accused manages in order " , conclude the accused is prevenient use not registered trade mark has certain effect.
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(3) right not registered trade mark " prevenient use " and " have certain effect " cognizance train of thought
1. is with applying for day " prevenient use " time level
Contemporary " trademark law " protective is trade mark right, right general not registered trade mark is not protective, otherwise the enrollment of brand and do not register do not have distinction. We think, protect " prevenient " not registered trade mark, do not answer with " use " tag for time, because usually not registered trade mark, law does not prohibit also be not being protected. The trademark that should not register only and registered trade mark are identical approximate perhaps, use go up in same similar perhaps goods when, " trademark law " just can prohibit not the behavior of person of registered trade mark, in order to protect trade mark right. To encourage the enrollment of brand, protection has certain effect not registered trade mark, register application day to regard as with brand not registered trade mark is prevenient used time level, accord with " trademark law " the enrollment of the requirement principle.
2. has what affect brand certainly to hold an ingredient
I am state-owned and special " well-known logo is maintained and protect a regulation " , " trademark law " set the factor that maintains well-known logo to should consult clearly still, together with each district just maintains the provision with protection about famous label, these are maintain not whether is registered trade mark had " have certain effect " provided referenced basis. We think, maintain was not registered and " the brand that has certain effect " when should referenced element include as follows at least, make the provision of reveal all the details of open sex after list:
(1) this not registered trade mark is a place relevant public place is witting;
(2) this not the duration that registered trade mark uses a year of above;
(3) this not the sale status of commodity of label of registered trade mark;
(4) this not registered trade mark is publicized in the advertisement on local media;
(5) this not registered trade mark is recorded as the protection that has certain influence brand;
(6) this not the other factor that registered trade mark has certain effect.
3. has what affect brand certainly to maintain a method
When the concerned material that the method of market research asks cognizance orgnaization is examining an applicant to refer, besides written examine, besides the opinion of consult concerned branch and expert, still answer, listen to the opinion of consumer, investigate not the social incidence of registered trade mark and degree, not the market sale of commodity of mark of place of registered trade mark or service or social service circumstance and credit, undertake be assessmented integratedly with the analysis, make assess finally and announcement.
Adopt the method of market research, cognizance orgnaization can avoid subjective assume as far as possible, ensure the objectivity that to was not being registered certain influence brand is maintained.
4. has what affect brand certainly to maintain effectiveness
Alleged " passivity is maintained, case maintain " principle, involve controversy issue when some brand namely when, obligee has authority basis " trademark law " the 32nd or the 59th the 3rd, those who apply for to maintain oneself not registered trade mark is " the brand that has certain effect " , prohibit thereby other registers him first prevenient had used not registered trade mark, or although other has been registered, but obligee can be in what continue to use his inside original limits to have certain effect not registered trade mark.
Anyhow, the cognizance of famous label must abolish the place, but the place maintains the reasonable part in the regulation to be worth to draw lessons from about famous label absorb. Referenced and well-known logo holds an ingredient, specific provision " have certain influence brand " cognizance element, make " trademark law " mix the 59th the 32nd times to have maneuverability the 3rd times, can obtain cogent protection prevenient use and have certain effect not the effect of registered trade mark.
Annotate:
1. author notes: Oneself ever had written a little article 10 years ago---" the doubt place cognizance to famous label and protection " , intercurrent watch is in " journal of institute of Inner Mongolia finance and economics " (2008 02 period) . Come ten years, many places came on stage to concern " of famous label maintain set with protection " , the place of famous label breed develop correlation with local economy. Apparent, famous label maintains the place to do not have legal basis with protection, violated law of market fairness competition, damaged the legitimate rights and interests of consumer, the power that also has caustic government more is judicial. The article is to be in " the doubt place cognizance to famous label and protection " undertook expanding certainly on the foundation. When the problem analyses a part, cite in those days the content of the article, relevant annotate also is the data that searchs when compose article in those days. But ponder over a part, it is oneself are in examine a place afresh when famous label evaluates behavior, addition content.
2. wool clanks: "Famous label can strip prevenient right " , " daily of science and technology " , on April 19, 2003.
3. Guo Zhenqing: "If why industry appraise through comparison wins just name " , " the Workers'Daily " , on August 5, 2004 the 3rd edition.
4. for example, second sex maintains Shandong province Ceng Yi " triplex " " Bai Xue " " power dragon " wait for 56 famous label. Refer to " China brand " 2000 the 7th period the 23rd page. In July 2004 the middle ten days of a month, shandong saves industrial and commercial bureau again sexual ground assess announced 229 famous label. Refer to Guo Zhenqing: "If why industry appraise through comparison wins just name? " , " the Workers'Daily " , on August 5, 2004 the 3rd edition. Second sex maintains Ceng Yi of the Gansu Province " golden ostrich " " Kunlun snow " " new generation " wait for 89 famous label. Refer to " China brand " , 2002 the 4th period the 47th page. Jiangsu is saved on October 15, 2001 one-time maintain announced " cygnet " " panda " " peony " wait for 233 famous label. Refer to " China brand " , 2002 the 3rd period the 46th page.
5. refers to " Yunnan province is famous brand maintains and protect way " the 10th regulation: " this locality square famous label reports each province, municipality, municipality directly under the Central Government mechanism of industrial and commercial administration is protected in coordination. " " Liaoning province is famous brand maintains and protect way " the 17th regulation: "To crossing the encroachment of the province Liaoning saves famous label special right case, by remnant mechanism of industrial and commercial administration is in charge of mechanism of as industrial and commercial as place administration coordinating investigate.
6. " Dalian city famous label is maintained and protect temporary measure " the 14th, " Heibei city famous label is maintained and protect byelaw " wait for a regulation the 25th times.
7. is specific refer to " trademark law " mix the 59th the 32nd times the 3rd.
8. Wang Ze: " right " prevenient the brand that use and has certain effect " protection -- , applicable < trademark law > case of demur of a typical brand comments on thirtieth " , " China brand " by 2007 11 period the 42nd page. (note: After be being revised the 3rd times " trademark law " did not change the 31st times, just turned into the 32nd) .
9. Rui Songyan, chen Jinchuan: " < trademark law > the 59th the 3rd understanding and applicable -- it is a perspective with sailing case " , " intellectual property " 2016 the 6th period, the 31st page.
Court of intermediate people of 10. Changzhou city, (2016) revive 04 civilian eventually 3528.
Court of intermediate people of city of 11. iron mountain, (2016) distant 12 civilian first 53.
