Fighting the "epidemic" according to law: Saying "No" to malicious registration of affected trademarks

(Fighting New Crown Pneumonia) Fighting the "epidemic" according to law: Saying "No" to malicious registration of the affected trademark

China News Agency, Beijing, March 6th: Title: Fighting "Epidemics" According to Law: Saying "No" to Malicious Registration of Involved Trademarks

China News Agency reporter Zhang Su

Zhong Nanshan, an academician of the Chinese Academy of Engineering who is "struggling" on the front line of the new crown pneumonia epidemic, and Li Wenliang, a physician of the Wuhan Central Hospital, who has been awarded the honor, have recently become the focus of society in another way.

The State Intellectual Property Office of the People's Republic of China announced on the 5th that following the rejection of 63 malicious trademark registration applications such as "Zhong Nanshan", "Vulcan Mountain" and "Thunder Mountain" according to law, it further rejected 37 malicious trademark registration applications such as "Li Wenliang" according to law.

Can a name be registered as a trademark?

Xu Chuanhan, assistant to the judge of the Asian Games Village Court of Chaoyang District People's Court in Beijing, distinguished between two situations involving the names of public figures when interpreting the law. One is to register a trademark in the name of a public person himself or after authorization by the public person. For example, Zhuhai Gree Electric Co., Ltd., a well-known entrepreneur Dong Mingzhu as the legal representative, registered "Dong Mingzhu" as a trademark.

The other is the registration of the name as a trademark by a non-name holder. "The right to name belongs to the right to personality, but also includes economic benefits. The name of a celebrity is particularly prominent. The name of a public figure is closely related to the commercial value of the public figure itself." Xu Chuanhan said that if the name of a public figure can be registered as a trademark, it will be It creates "free-riding" competition and disrupts the normal order of the market.

Taking the above-mentioned "Li Wenliang" and trademark application information containing the word "Wen Liang" as examples, involving medical equipment, medical horticulture, convenience food, education and entertainment, medicine and alcohol, etc., a Shanghai company uses "Li Wenliang", "Wen Liang said", etc. 8 trademarks have been applied, and some trademark categories are not within its business scope. In addition, a company in Changsha officially announced that Dr. Li Wenliang had registered the trademark immediately on the day of his death, which caused public criticism. The company's legal representative publicly apologized and said he would withdraw the relevant application.

Xu Chuanhan said that public figures also have differences in audience scope and popularity, and trademark examination is subjective to a certain extent. For celebrities who have passed away, judicial practice generally considers them from the perspective of adverse effects. For celebrities who have died, if the name holder is not the first to register a trademark, the name holder may raise objections and be invalid according to law.

What is the basis for rejecting the application?

When the State Intellectual Property Office rejected the application for registration of a malicious trademark in accordance with the law in these two notifications, they stated that “the eighth paragraph of Article 11 of the Trademark Law shall be rejected”. According to this clause, the names of marks that are harmful to socialist morality or have other adverse effects shall not be used for trademark registration.

How to define a trademark as "other adverse effects"? Zhu Xiaoyu, a senior partner of Beijing Jiaguan Law Firm, told the media that the trademark mark or its constituent elements as a whole should be the object of review to determine whether it has produced social and public interests and public order in China's politics, economy, culture, religion, and nationality. Negative and negative effects, the application of this clause does not require actual damage, nor does it need to consider whether the subjective status of the applicant is malicious.

Taking the name of Academician Zhong Nanshan as an example, Xu Chuanhan said that in a specific time node and social environment, "Zhong Nanshan" not only has high recognition, but also should be included in the scope of "politics, economy, culture, religion, ethnicity, etc." For the scope of the note, the State Intellectual Property Office considers that its registration as a trademark is prone to adverse effects.

"Malicious trademark registration" is considered by legal experts to refer to registration activities that are not for the purpose of use but for the purpose of hoarding and selling profits. Attorney Liu Kai of Intellectual Property and Entertainment Law of Hunan Wensheng Law Firm pointed out in an interview that the newly revised trademark law has been implemented from November 1, 2019. It is clear that those who apply for trademark registration in bad faith shall be warned according to the circumstances, Fines and other administrative penalties.

How to prevent malicious cybersquatting?

Relevant departments issued the Guidance on Examination and Control of Trademarks Related to Epidemic Prevention as early as February 7. The State Intellectual Property Office reiterated on the 5th that on the basis of rejecting malicious trademark registration applications in accordance with the law, it will increase the notification of applicants and agencies that maliciously apply for trademark registration, and guide local administrative penalties in accordance with laws and regulations.

However, in addition to the above names, there are still disputes or doubts about trademark registration applications involving epidemic prevention and control. Although the State Intellectual Property Office applied Article 11 of Article 8 of the Trademark Law to dismiss 27 trademark registrations such as "Mountain God" and 24 "Thunder God Mountain" in accordance with the law, "if five or ten years later, someone will apply for fire protection. Will the Shenshan and Thunder Mountain trademarks be rejected for the same reason? The answer may be different. "Zhu Xiaoyu said.

For more than 1,800 companies with "new crowns" in their names, and 184 trademarks related to "new crowns" that can be found on the official website of the Trademark Office of the State Intellectual Property Office, the situation is somewhat awkward. A food company in Chengdu, founded in 1989, was suggested by a netizen to change its name because it had the "New Crown" trademark, and it was rejected by the company. Liu Kai believes that before the new crown pneumonia epidemic, merchants who used "new crown" as a trademark or company name, "new crown" had some connection with the products and services it provided.

In the final analysis, malicious registration of trademarks not only violates public order, breaks the legal bottom line, but also adds to the chaos of the epidemic. "Most of the" squatting "hotspot trademarks are difficult to generate high commercial value, and most of the" squashed "trademarks have become" spam trademarks "and have been put on hold." Zhu Xiaoyu said that enterprises should resist these malicious registrations. Defend the central role of trademarks as a source of products or services. (Finish)