Detailed explanation of infringement liability of

The provisions of the Supreme People's Court on Several Issues concerning the trial of civil dispute cases involving the conflict between registered trademarks, enterprise names and prior rights (hereinafter referred to as the "provisions") was promulgated on February 19. A few days ago, Jiang Zhipei, President of the intellectual property court of the Supreme People's court, received an exclusive interview on this newly released judicial interpretation

at present, intellectual property rights conflicts are mainly manifested in the right conflicts between registered trademarks, between registered trademarks and enterprise names, between registered trademarks and copyrights, and between enterprise names. They are also manifested in various forms, such as the non-standard use of registered trademarks and enterprise names, the use of overseas registered enterprise names in China, and so on

: please introduce the background of the drafting of the regulations

Jiang Zhipei: in recent years, various civil disputes caused by the conflict between registered trademarks, enterprise names and prior civil rights have increased, which has attracted widespread attention in social and economic life, and has also become a hot and difficult point in intellectual property trials

since the acquisition of intellectual property rights is based on different intellectual property legal norms, the ways in which various kinds of intellectual property rights are generated are also different. Copyright is the automatic production of works after their creation; The right to the unique name, packaging and decoration of well-known goods stipulated in the anti unfair competition law is based on business use; The trademark right, patent right and enterprise name right should be registered by different administrative organs according to law. For example, trademark right, patent right and copyright are respectively authorized or managed by trademark office, intellectual property office and copyright office. When these intellectual property rights are owned by different obligees, conflicts may arise in the exercise of different rights

at present, these rights conflicts are mainly manifested in the rights conflicts between registered trademarks, between registered trademarks and enterprise names, between registered trademarks and copyrights, and between enterprise names, as well as in various forms such as the non-standard use of registered trademarks and enterprise names, the use of overseas registered enterprise names in China, and so on

in recent years, the people's courts have actively explored and accumulated some experience in trying cases of conflict of rights disputes, and formed many consensuses. In order to further correctly try such dispute cases, unify judicial standards, and address the urgent need to solve and relatively mature problems in trial practice, the Supreme People's court drafted the provisions of the Supreme People's Court on Several Issues concerning the trial of civil dispute cases involving the conflict between registered trademarks, enterprise names and prior rights. The provisions have been discussed, adopted and promulgated by the judicial committee and will be implemented from March 1 this year

the draft regulation solicited opinions from the public through the Internet from December 2005 to February 2006, and received many good suggestions for revision.

: as far as I know, the regulation solicited opinions on the Internet during the formulation process and attracted widespread attention

Jiang Zhipei: this "regulation" is indeed drafted on the basis of repeated research, extensive consultation and many revisions. From December, 2005 to February, 2006, we solicited public opinions on this issue through the Internet, and received many good suggestions for revision. As the resolution of the conflict of rights also involves the coordination and connection between judicial power and administrative power, we have repeatedly consulted the legislative organs, relevant administrative authorities and other units in the drafting, and received their strong support

the "provisions" do not require everything, but only provide for urgent problems such as the acceptance of cases and the way of civil liability

: I have noticed that there are many provisions in the draft provisions when soliciting opinions on the Internet, and there are only four provisions officially published this time, so has there been some change in thinking

Jiang Zhipei: the cases of rights conflict disputes involve a wide range of legal issues, but the provisions are not comprehensive

our consideration is that the standard setting problem that has been solved in the past will no longer be repeated for the sake of systematization. Therefore, in the spirit of focusing on solving the most prominent problem of the application of law in trial practice, the provisions ultimately only provide for the acceptance of such cases, civil methods and other urgent problems to be solved

the provisions are few but rich in content, which basically solves the problems involving the conflict of rights that need to be solved urgently in the current judicial practice

: please introduce the specific content of the provisions

Jiang Zhipei: there are four policy provisions in the regulations and issued at different levels such as market and industrial environment, which basically solve the problems involving the conflict of rights that need to be solved urgently in the current judicial practice, and the content is relatively rich

Articles 1 and 2 of the provisions focus on the acceptance of civil dispute cases of conflict of rights. The first paragraph of Article 1 stipulates the acceptance of civil disputes over the conflict between registered trademarks and prior rights. Such prior rights include copyright, design patent right, enterprise name right, etc. Unauthorized use of other people's works such as words and graphics, as well as designs and enterprise name rights in trademark registration can also constitute civil infringement, and the resulting civil disputes belong to the scope of cases accepted by the people's court. Therefore, the first paragraph of Article 1 of the provisions stipulates: "if the plaintiff brings a lawsuit on the ground that the words and graphics used by others' registered trademarks infringe on their prior rights such as copyright, design patent right and enterprise name right, which conforms to the provisions of Article 108 of the Civil Procedure Law, the people's court shall accept it."

at present, China has a large number of registered trademarks, and the judgment standard of trademark approximation is relatively flexible. If the conflict of rights between registered trademarks is included in the scope of civil litigation, there may be different applicable standards in different regions, which is not conducive to maintaining the trademark centralized registration authorization system

the second paragraph of Article 1 of the provisions is for conflicts and disputes involving two registered trademarks. The essence of this kind of dispute is that both parties have disputes over the registration of trademarks. Articles 30 and 41 of the current trademark law set up a relatively perfect trademark dispute procedure, and the parties can obtain corresponding relief accordingly. If the trademark administrative review is inappropriate, administrative litigation can also be carried out according to law. The current judicial practice basically adopts the practice of not accepting civil infringement disputes. Considering the large number of registered trademarks in our country at present, the judgment standard of trademark approximation has great flexibility. If such conflicts of rights are included in the scope of civil litigation, there may be different applicable standards in different regions, which is not easy to avoid the tendency of local protectionism and is not conducive to the maintenance of the centralized trademark registration and authorization system. In view of this, the second paragraph of Article 1 of the provisions clearly stipulates: "if the plaintiff brings a lawsuit on the ground that the registered trademark used by others on the approved goods is the same or similar to its previous registered trademark, the people's court shall inform the plaintiff to apply to the relevant administrative competent authority for settlement in accordance with the provisions of item (3) of Article 111 of the civil procedure law."

in practice, some trademark owners abuse their exclusive right to use registered trademarks for other categories of goods or services beyond the approved scope of use, or combine two registered trademarks on the same commodity, or deform the graphics of registered trademarks, change their distinctive features, and so on. All these ways of use are no longer within the scope of the exclusive right to use trademarks protected by the trademark law. The people's court should accept the civil disputes arising therefrom and make a ruling on whether they constitute infringement

the name of the enterprise near others will be held accountable in accordance with the anti unfair competition law

: Article 2 of the provisions stipulates the acceptance of civil disputes over conflicts between enterprise names. In real life, there are many phenomena of "near famous brands". From what angle should the "Regulations" solve this problem

Jiang Zhipei: unauthorized registration and use of others' well-known enterprise names (including brand names) is one of the main forms of what people commonly call "near famous brands". This is an act of unfair competition, and there is a high social voice for regulating it according to law in practice. However, because the actor's enterprise name has also been registered, there is a dispute whether such disputes can be accepted and tried by the court as a civil infringement case, resulting in the legitimate rights and interests of the obligee can not be protected in time. Item (3) of Article 5 of the anti unfair competition law stipulates that "unauthorized use of another person's enterprise name or name, which leads people to mistake it for another person's goods" as an act of unfair competition, with the purpose of preventing market confusion. Therefore, Article 2 of the provisions clearly stipulates: "if the plaintiff brings a lawsuit on the ground that the new type of recycled plastic granulator with another enterprise name is constantly optimized and updated, which is the same or similar to its previous enterprise name, which is enough to confuse the relevant public with the source of its goods and violates the provisions of Article 5 (3) of the anti unfair competition law, and complies with the provisions of Article 108 of the civil procedure law, the people's court shall accept it."

in this article of the provisions, the provisions of Article 5 (3) of the anti unfair competition law are quoted to guide and regulate the prosecution of the parties, and also provide a legal basis for the trial of the case

"civil dispute cases of conflicts between registered trademarks, enterprise names and prior rights" cannot be taken as the cause of action

: how to determine the cause of action of such rights conflict dispute cases

Jiang Zhipei: Article 3 of the provisions is a provision on the determination of the cause of action and the application of law in civil disputes over the conflict of rights

"civil dispute cases of conflict between registered trademarks, enterprise names and prior rights" is only a description of the common characteristics of such disputes, which does not reflect the nature of their legal relationship, so it cannot be used as a cause of action. At the same time, after a certain period of time, the provisions also make comprehensive provisions on the causes of all kinds of intellectual property civil disputes. Therefore, Article 3 of the provisions stipulates that the people's court shall determine the cause of action of such cases according to the plaintiff's claim and the nature of the civil legal relationship in dispute, and apply the corresponding laws. That is to say, if such disputes belong to infringement of the exclusive right to use trademarks, the trademark law should be applied; If it belongs to unfair competition, the Anti Unfair Competition Law shall be applied and the corresponding cause of action shall be determined

the infringer shall bear the civil liability of ceasing to use, standardizing the use, etc.

: how should the sued enterprise name bear the civil liability if it constitutes an infringement of trademark rights or unfair competition

Jiang Zhipei: Article 4 is about how the sued enterprise name constitutes unfair competition or infringes the exclusive right to use a registered trademark and should bear civil liabilities. It should be said that according to the general principles of the civil law and other laws, depending on the specific circumstances of the case, the people's court can apply various civil liability methods such as compensation stipulated by the law. However, in view of the need to change and correct the improper use of enterprise names or brand names in such cases, according to the method of "stopping infringement" stipulated by the law, Article 4 stipulates that the people's court can determine that the defendant shall bear "civil liabilities such as stopping the use and standardizing the use" according to the plaintiff's claim and the specific circumstances of the case. Among them, "standardized use" is mainly aimed at outbursts