In addition to the marks directly used to distinguish an enterprise from the products of other enterprises, there are other marks in trade activities, which are closely related to the goods, but are different from the marks used on the goods; Or although it is used on goods, it is not mainly used to distinguish the products of different enterprises. The trademark laws of many countries and some international conventions list them as protected objects, and the protection of them has formed international practice, because they are different from the marks commonly used on goods. It can be called a Protected Marks Adiacent to Trademark lawpanel.
1. Service mark
In economic activities, the "products" of some enterprises are not provided to consumers as tangible commodities, but as some commercial service projects to meet the needs of consumers. Such as travel services, repair services, insurance services, entertainment services, transportation services, postal services and so on. These different "products" offered by different companies also need different markers to distinguish them. For example, China's "Civil Aviation", the United Kingdom's "British Airways", Germany's "Lufthansa" and so on, they all provide the same service, but each has a different service mark. A service mark serves the same purpose as a trademark, but it is applied to a different object.
For service marks, not all countries offer registration protection.
In the trademark laws of the United Kingdom and some other countries, there is no protection for service marks. However, British Case Law and common Law (Coeamon Law) provide protection for service marks.
In 1946, the United States for the first time put the protection of service marks on the same footing as the protection of goods marks in its written trademark law (the Lanham Act).
Since then, many countries have made similar provisions to the United States when revising trademark laws, such as the original Federal German trademark law amended in 1979, which added the content of protecting service marks. There are more than 100 countries in the world for the registration of service marks, in some countries, this type of service mark can also be registered as a trademark, used in the service unit supply of food and beverages, stationery, utensils and service personnel clothing, and be protected.
Countries and regions that have registered service marks are: Algeria, Argentina, Australia, Austria, Bahrain, Bolivia, Botswana, Brazil, Bulgaria, Canada, Chile, Colombia, Costa Rica, the Czech Republic and Slovakia, Denmark, Ecuador, Egypt, Finland, France, Germany, Guatemala, Haiti, Honduras, Hungary, Iceland, Iran, Israel, Italy, the Republic of Korea, Republic of Korea, Lesotho, Liberia, Libya, Mexico, Monaco, Mongolia, Morocco, Nicaragua, Norway, Papua New Guinea, Paraguay, Philippines, Portugal, Puerto Rico, Qatar, Cape Khaimah, Romania, Fefe, South-West Africa, Spain, Sri Lanka, Sudan, Eswatini, Sweden, Syria, Tunisia, CIS, Uruguay, Phuslav, Zimbabwe, China, etc.
The Paris Convention has written into the protection of service marks, but it does not put it in the same position as goods marks, and does not require that service marks be registered for protection. Therefore, the national law of Member States is free to determine the mode of protection for service marks.
Service marks and trade names
Business name, also called name. A trade name is composed of words, written or engraved on a plaque and hung on the shop. Many business names are used in our country, and quite a few of them have a long history and are well-known at home and abroad. Trade name and manufacturer's number may be registered as part of the enterprise name. When registering the name of an enterprise, a firm must add a word indicating its trade or business characteristics. For example, "Quanjude" is a trade name, and "Quanjude Roast Duck Restaurant" is its registered enterprise name.
Trade name has the function of distinguishing different business sources, so the relationship between trade name and service mark and commodity mark is very close. But trade names are not equal to service marks or goods marks. A trade name used on goods is a trade mark. For example, "Quanjude" is a trademark when used on roast duck products sold in the market. Trade names used in service items are service marks. For example, "Quanjude" is a service mark when used in the service industry of a roast duck restaurant.
Service marks and manufacturer logos
The corporate logo, commonly known as "mark", "factory mark" or "group mark", identifies the enterprise entity or group and has the function of distinguishing different operators. Corporate logos are usually text, graphics, or a combination of them. Most are represented by short names or abbreviations of business names, or by symbolic graphics.
The use of corporate logos is becoming more common, and so are the calls for protection. Because people often understand the service referred to by the service mark as a broad sense of service, so the corporate logo and service mark are confused, especially the use of the corporate logo is similar to the service mark, but also make people regard the corporate logo and service mark as the same thing.
Although a business logo can be used as a service mark, it is only a service mark if it is used on a specific service item. Similarly, if a corporate logo is used on a specific product, it is a commodity trademark. Therefore, in the reality that there is no door to seek protection for corporate logos, enterprises with trademark awareness often seek the protection of the Trademark Law to "match" their business with the goods or services registered in the trademark, and adopt the method of "decentralized" protection to allow their corporate logos to get legal protection within a certain range. Practice has proved that this is an effective method.
An enterprise logo must comply with the relevant provisions of the Trademark Law before it can be registered as a service mark or a commodity trademark to obtain the exclusive right to use the trademark.
Ii. Firm Name
Trademarks are producers of goods, operators or providers of services. A distinctive mark used to distinguish one's goods or services from those of others. It is usually composed of text, graphics, or a combination of both, and is indicated on goods, packaging, signboards, and advertisements. Trade name is the name used by industrial and commercial enterprises to conduct business, and is used to distinguish between different enterprises. Generally, it is named by the operators of industrial and commercial enterprises according to the residence, business scope, business nature, enterprise scale, national habits, traditions and so on. From the above concepts, we can see that
Trademarks and trade names:
(1) All have different functions. Trademarks are used to distinguish the goods or services provided by different producers and operators of goods, it reflects the specific quality of goods, characteristics or services, easy for people to buy or consume, to prevent confusion with others in the same goods or similar goods and services. Business name reflects the identity of the specific subject, the performance of the operator's personality and business, its purpose is to distinguish its own business from the business of others, in order to avoid confusion with other operators in various activities, so that the public misidentification.
(2) Both are significant. Trademarks and trade names have different functions, so they should be scientific and significant in their selection. The composition of a trademark can be sufficient to form a combination of words and pictures. The characters include Chinese characters, ethnic minority characters, numbers, and pinyin letters. Foreign languages are also included. Graphics, can be a variety of drawings, geometric figures, patterns, marks, etc. The name of the trade name must be in Chinese characters, other symbols, patterns, numbers, Chinese pinyin, foreign characters are not allowed to be used as a trade name.
(3) are signs of property rights. In particular, the reputation of the firm is the life of the enterprise, they are condensed with the wisdom and effort of all employees of the enterprise, can bring inestimable economic benefits to the enterprise, is the valuable intangible property of the enterprise. Therefore, at present, most countries in the world regard trademarks and trade names as property rights into the scope of legal protection. Prevent others from misappropriation or false use, in order to effectively protect the interests of trademark and trade name owners, and maintain a reasonable economic order.
2. Similarities and opposites of trademarks and trade names
After registration of trademarks and trade names in accordance with the law, the exclusive right has been obtained, and it has the following legal effects:
(1) Exclusive effect. Also known as prohibitive effect. After the registration of a trademark, the owner of the trademark enjoys exclusive rights in the scope of the approved registered trademark and the approved use of the goods, and others may not use the same or similar trademark on the same kind of goods or similar goods. After the registration of a trade name, in a certain region, it also has the effect of excluding peers and other entities applying for the use of the same trade name or similar trade name.
(2) Effectiveness of relief. In the event of infringement of a registered trademark, the trademark owner may, according to law, request the administrative authority for industry and commerce or the people's court for protection, order the infringing party to immediately stop the infringing act, and have the right to demand economic compensation. After the registration of a business name, in case of infringement such as theft or false use by others, the owner of the business name may also request the government organ or the people's court for protection according to law, order the infringer to stop the use, restore its reputation and request for economic compensation.
(3) Transfer effect according to law. Both trademark rights and trade name rights are property rights and can be transferred. Such transfer must comply with the legal administrative procedures, that is, the transferor and the assignee jointly file an application with the trademark authority, which is published in the trademark announcement after examination and approval, and the transfer can take effect. Transfer of firm. A written contract shall be signed by the assignor and the assignee. It shall take effect only after being submitted to the competent registration authority for approval in accordance with the registration application procedures.
In theory, the transfer of trademarks and trade names can be paid or free, but in real life, trademarks and trade names are a huge wealth for everyone. Therefore, in the vast majority of cases, it is transferred by the assignor to the assignee at a higher price.
The main differences between trademarks and trade names are as follows:
(1) Different markers. The trademark is the mark on the commodity, only the commodity can use the trademark, so the trademark is generally associated with a specific commodity and exists; Trade name is the symbol of enterprise business, it is used in business activities, and the main business activities of industrial and commercial enterprises. Therefore, it often exists in connection with the producers or operators of commodities.
(2) Different registration principles and procedures. That is, in addition to human drugs and tobacco products, trademarks used on other goods are registered or not at their discretion. The trademark owner applies for registration of the trademark. In accordance with the provisions of the Trademark Law, an application can be filed with the trademark authority, and the trademark Registration Certificate will be issued after approval, that is, the right to register the trademark will be obtained. At present, the mainland of China adopts the principle of "compulsory registration" for the registration of business names, that is, unregistered business names are not allowed to use.
(3) The scope of effect and legal time limit of trademarks and trade names are different. The exclusive rights of trademarks and trade names are subject to strict geographical and time limits.
- Trademark rights have legal timeliness. The right of trade name has no statutory period, it lives and dies with the enterprise. - The geographical effect of the trademark right is nationwide or larger, while the exclusive trade name right, except for national enterprises, generally only takes effect in the jurisdiction of the registrar.
At present, in developed countries, the special part of the trade name is used as a trademark application has become a common practice in modern times. Such as Japan's "Hitachi", "Toyota", Germany's "Bayer" and so on. The practice of integration of trademark and trade name not only receives the effect of publicity of trademark and trade name at the same time, but also can get the protection of dual legal system, which is worthy of reference for every Chinese enterprise operator.
3. Name of place of origin
The Appellation Of Origia lawpanel (or Indications of Source) is a sign indicating the origin of a product. Such as Chinese porcelain, Paris perfume, Hebei pear and so on. Among them, China, Paris, Hebei are geographical names, and when these geographical names are associated with a certain commodity in the region, they are transformed into the name of the place of origin with special value.
The name of the place of origin also has the meaning of property right, which indicates not only the geographical origin of the commodity, but also the quality characteristics of the specific commodity. The quality characteristics of these goods are mainly determined by natural factors and tradition.
The name of the place of origin becomes the proof and guarantee of a particular quality. Such as French champagne, Jinhua ham, Australian hair, Beijing roast duck and so on.
The name of the place of origin generally belongs to the collective and local common property. All operators in the region have the right to use the name of the place of origin and share the honor and economic benefits that the name of the place of origin brings to the region. The name of origin is not exclusive to a legal person or natural person like a trademark, so it cannot be registered by an enterprise and cannot be transferred. According to the laws of some countries, false origin names, such as goods that are not produced in Japan but are marked with the words "Made in Japan", or bear the image of Mount Fuji, can be judged as deceptive marks and users can be sanctioned. The manufacturers of false origin names are generally not one or two, and may involve a wide range. So in countries where the law allows only the victim to Sue, there is often more than one person with the right to Sue a journalist for using a false trademark.
Both the Paris Convention and the Madrid Agreement stipulate that the member States of the Convention or Agreement have the obligation to prohibit the import of all goods bearing false names of origin, and also provide for the imposition of legal sanctions on those who use such false names.
Under the Paris Convention, a person entitled to Sue for an infringement is any natural or legal person who produces, manufactures or distributes the same commodity in question "in the country or region indicated by the false name of origin and in the country or region in which the name is used". Madrid Agreement for the Suppression Of False or Deceptive lndications Of Sourceon (Madrid Agreement for the Suppression of False or Deceptive lndications of Sourceon the Agreement on the Protection of Appellations of Origin and their International Registration (Union for the Protection of Applications of Origin and their International Registration) Registration also provides the basic norms for sanctioning the use of false names of origin. Both trademarks and names of origin can be protected, but names of origin are not as time-sensitive as trademarks, and the legal systems for protecting trademarks and names of origin are not the same.
4. Other protected marks
Because countries have different environments and habits in trade activities, or because of other political, economic, social and cultural reasons, many countries also have some of their own unique marks used for goods or services, such as some countries use "quality marks" to indicate that a certain commodity has reached a certain quality standard. Since in the international market, trademarks have been increasingly unable to play the role of "commodity quality signs", the use of special marks to indicate product quality is more important.
For example, the "International A1 Wool mark" is a well-known quality mark in the international market. In the national or local commodity quality evaluation activities, China evaluates certain products to be awarded gold or silver quality awards, and allows enterprises producing these products to mark "national (or local) quality awards in a certain year" on the winning products, which is actually adding "quality marks" to the products. Most of the textiles distributed by the Commonwealth of home enterprises often have a "line-heading" (line-heading), its connotation is complex, sometimes marked with the product composition (such as marked is pure wool, is rayon, or blended, etc.), sometimes marked with the origin, sometimes both, its role is similar to the origin name, is not exclusive. If a false mark is made on the head, the victim can only be the buyer, so there is no way to specify who is entitled to Sue, but the trademark law of these Commonwealth countries clearly stipulates that the false head mark is subject to legal sanctions, and it also stipulates that the head mark cannot replace the trademark and cannot be used as a trademark.
In 1983, Norway began to implement the mark registration system for gold, silver and platinum craft products, although the registration procedure is handled in the Patent and Trademark Office, but the registered mark cannot be used as a trademark.
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