In accordance with the relevant provisions of the "Trademark Law" and the "Regulations on the Implementation of the Trademark Law", the "Trademark Infringement Judgment Standard" was issued on June 15, 2020.

The "Standard" systematically sorts out and summarizes the beneficial experiences and practices of trademark administrative protection over the years, and incorporates innovative regulations in combination with practice.  There are 38 articles in the "Standard", which provide detailed regulations on the use of trademarks, the same kind of goods, similar goods, the same trademark, similar trademarks, easy to be confused, sales exemption, conflict of rights, suspension of application, and identification of right holders.  It mainly includes:

The first is about the use of trademarks.  It clarifies that the use of trademarks is usually the prerequisite for determining trademark infringement; further refines the definition of trademark use, lists the specific manifestations of trademark use; and clarifies the principles of trademark use determination.

The second is about the same commodity or similar commodities.  The "Standard" stipulates the principles for determining the same and similar products, and clarifies the proper role of the "Differentiation Table" in trademark administrative enforcement.

The third is about the same trademark and similar trademarks.  On the basis of traditional trademarks, the standards for judging the identity and similarity of new trademarks such as three-dimensional trademarks, color combination trademarks, and sound trademarks are incorporated into the "Standard".  At the same time, it further clarifies the effect of the application of the "Trademark Examination and Trial Standards" in trademark administrative enforcement.

The fourth is about being easily confused. The new "Trademark Law" that was implemented in 2014 first proposed the regulations that are easy to be confused. Based on the study of administrative normative documents and judicial interpretations, the "Standard" clarifies two situations that are easy to be confused and the relevant factors about what needs to be considered if they are easy to be confused.

The fifth is about not having the permission of the trademark registrant.  Regarding the disputed infringement situations in law enforcement practices that exceed the category, time limit, and quantity of trademark use licenses, the "Standard" clearly stipulates that unlicensed trademark registrants include unlicensed and over-licensed categories, deadlines, and quantities, etc. situation.

The sixth is about specific acts of trademark infringement.  The "Standard" combines law enforcement practices, refers to relevant administrative replies, and refers to judicial interpretations, and provides for the legal application of trademark infringements that are prone to occur in practice, including self-change of registered trademarks, combined use of multiple registered trademarks, and the use of colors with the purpose of attachments, the use of infringing goods in the contracting of labor and materials processing, the gift of infringing goods in sales activities, and the assistance in infringement; further clarifies the specific applicable provisions of the trademark law.

The seventh is about sales exemption.  The "Standard" specifies the relevant requirements for exemption of liability for sellers, clarifying that they are not unaware of sales and satisfying the relevant conditions of the description provider.

The eighth is the handling of conflicts between trademarks and other intellectual property rights.  The "Standard" stipulates the principles for handling conflicts between trademarks and the above-mentioned intellectual property rights, and clarifies that the trademark application date is the benchmark for comparison.

The ninth is about the defense of prior use of trademarks.  In order to standardize the use of unregistered trademarks that were previously used, the "Standard" has detailed regulations on trademarks that have a certain impact and the original scope of use.

The tenth is about the application of suspension.  The "Standard" specifies the circumstances under which suspension can be applied.

The eleventh is about trademark infringements that have been committed twice or more within five years.  The "Standard" provides detailed provisions on the "perpetration of more than two trademark infringements within five years" stipulated in Article 60, Paragraph 2 of the "Trademark Law", which clearly means that the same party has been identified as infringing others by the relevant trademark enforcement agencies, people's courts, etc, from the date when the administrative penalty or judgment of the exclusive right to exclusive use of a registered trademark becomes effective, trademark infringement is committed within five years.

The twelfth is about the identification of right holders.  The "Standard" stipulates that trademark owners shall bear legal responsibility for the identification opinions issued by themselves, and clarifies that law enforcement agencies shall examine the legality of the subject of identification opinions, the authenticity and relevance of the identification opinions, and that the situation about the identification opinions that are adopted as evidence.

  From CNIPA

June 15th, 2020