Guide
Since the amendment of the Trademark Law in 2013 to add a clause on the use of trademarks, "trademark use" has become a hot topic of discussion in the field of the Trademark Law, and "trademark use" has even become a precondition for judging trademark infringement.
Related Perspectives:
Meaning of Trademark Use
The use of a trademark can be understood from the following two aspects:
1. On the use of trademarks
In terms of the use of trademarks, there are seven specific forms:
(1) Use of the trademark on the goods. That is, the trademark is used directly on the goods. For example, some automobile manufacturing enterprises will make registered trademarks and inlay them in the front of the car, trunk and other parts. Another example is that some computer manufacturing enterprises first make registered trademarks, and then inlay them on computer display screens, host computers, and so on. Although the use of a trademark on a commodity does not involve the use of the product, it has become an integral part of the commodity from an overall and aesthetic point of view. This is a relatively common way to use trademarks, especially on some electrical, electronic, clothing, machinery and other goods.
(2) Use the trademark on the packaging of the goods. That is, the use of the trademark on the packaging of the goods. In real life, some commodities, such as food, medicines, etc., require a certain amount of packaging. The use of trademarks on the packaging of goods, such as printing trademarks on packaging, is also a common way to use trademarks.
(3) Use the trademark on the container. That is, the use of the trademark on the container of the product. In real life, some goods, such as alcohol, oil, and other goods in liquid form, require a certain container to hold them. The use of trademarks on the containers of goods, such as printing trademarks on wine bottles, is also a common way to use trademarks.
(4) Use the trademark on transaction documents. That is, the use of trademarks on transaction documents such as contract texts. For example, some enterprises directly print their trademarks on the letter of intent and the official text of the contract. This way of using trademarks is mainly used by some foreign-funded enterprises and some domestic enterprises that have a considerable business scale or a relatively advantageous position, and are usually a party to the party that provides the text of the format contract.
(5) Use the trademark in advertising. i.e. the use of trademarks in advertising. In some cases, the company's trademark repeatedly appears in the advertising video produced by the company. In addition, some enterprises use trademarks on their printed materials such as enterprise growth history or product introductions. This is also one of the more common ways to use trademarks.
(6) Use the trademark in the exhibition. i.e. the use of the trademark in the exhibition. For example, in the trade fair of a certain type of product, the trademark is directly used on the exhibition booth of the enterprise.
(7) Use the trademark in other commercial activities. That is, the use of trademarks in other commercial activities other than those mentioned above. For example, in a TV drama work, an enterprise provides sponsorship and uses the company's trademark in the TV series, or an enterprise holds a reception and places a specially made registered trademark of the company at the reception site.
2. Purpose of use of the trademark
From the point of view of the purpose of use of trademarks, it is to "identify the source of goods". That is, by using a trademark, others can understand where the product comes from or from what company. In other words, through the use of trademarks, others know which company produced the goods, or what the company does.
(Excerpted from "<中华人民共和国商标法>Interpretation and Practical Guide", edited by Qiao Xiaoyang, published by China Democracy and Legal Publishing House, September 2013)
Related Cases
1. The promotion of a registered trademark that is not associated with a specific goods or service is not a trademark use in the sense of a commercial logo
——Zhejiang Meijing International Travel Service Co., Ltd. v. Zhejiang Hangzhou Tui Travel Group Co., Ltd., a trademark infringement dispute
The gist of the case: The publicity of a registered trademark that is not associated with a specific goods or service (does not refer to a specific class of goods or services) does not belong to the use of a trademark in the sense of a commercial logo, and generally does not constitute trademark infringement, but if the publicity behavior does not follow the principle of good faith and generally accepted business ethics, damages the legitimate rights and interests of others who have previously known the same trademark, and causes confusion and misidentification in the market, it may constitute unfair competition and should bear legal liability such as additional distinguishing marks.
Trial court: Hangzhou Intermediate People's Court, Zhejiang Province
Source: People's Justice, Cases, Issue 12, 2013
2. The large-scale, repetitive, and successive use of registered trademark signs on similar goods is trademark use within the meaning of the Trademark Law
-- Guqiao Guxi Co., Ltd. v. Shanghai Best Shoes Co., Ltd. et al., a dispute over infringement of the exclusive right to use a registered trademark
The gist of the case: The large-scale, repetitive, and successive use of registered trademark signs on the packaging and advertising materials of similar goods or commodities is a trademark use within the meaning of the Trademark Law because this use can play a role in distinguishing the source of the goods, and is not prohibited by the provisions of mainland laws and administrative regulations on the use of trademarks.
Case No.: (2007) Yi Zhong Min Chu Zi No. 10149
Trial court: Beijing No. 1 Intermediate People's Court
Source: Selected Cases of the People's Courts, Vol. 4, 2008 (No. 66)
3. The use of another person's registered trademark as the name of a commercial real estate is an identifying trademark use and constitutes trademark infringement
——Guangzhou Star River Industrial Development Co., Ltd. of Guangdong Province and Guangzhou Hongfu Real Estate Co., Ltd. of Guangdong Province v. Tianjin Hongxing Real Estate Development Co., Ltd., a trademark infringement dispute
The gist of the case: there is a specific connection between the sale of commercial housing and real estate management, construction and other services, which constitutes a similarity between goods and services, and the use of the most prominent and well-known part of the registered trademark of others as the name of the real estate in the sale of commercial housing is essentially a commercial identification use that can play a role in identification, which is easy to cause confusion and misidentification among the relevant public, and should be determined as an infringement of the meaning of the trademark right.
Case No.: (2013) Min Ti Zi No. 3 Trial Court: Supreme People's Court Source: Selected by Faxin Platform
4. If the use does not play the role of indicating the source or source, it does not belong to trademark use in the sense of infringement of the exclusive right to use a registered trademark
——Zhao Guanghui v. Hubei Radio and Television Station, a trademark infringement dispute
The gist of the case: For commonly used public words, when using their inherent meanings and there is no other better alternative word to choose from, the actor has no subjective malice. If the perpetrator's use of the accused language is standardized and reasonable, and conforms to commercial practices and linguistic expressions, his conduct is justified. If the actor's use does not perform the function of indicating the source or source, it is not a trademark use.
Case No.: (2016) E Min Zhong No. 109
Trial court: Hubei Provincial High People's Court
5. The use of the trademark in a prominent or conspicuous position on the goods or outer packaging is a distinctive trademark
——Beijing Dingtiandi Technology Co., Ltd. v. Vitia Company Trademark Infringement Dispute Appeal Case
The gist of the case: The trademark used in a prominent or conspicuous position of the goods or their outer packaging can generally directly indicate the source of the goods, which is an act of use within the meaning of the Trademark Law, and the mark is easy to be directly observed by consumers, thereby causing confusion or misidentification of the source of the goods, which constitutes an infringement of the exclusive right to use a registered trademark.
Case No.: (2014) Gao Min (Zhi) Zhong Zi No. 4834
Trial court: Beijing Higher People's Court