Recognized conditions for well-know trademark

14:09, September 01, 2009        

In determining whether a certain trademark can be defined as a well-known trademark in China, the main standard is that the trademark is widely known and has a relatively good reputation among the relevant public in the market. According to the Trademark Law, article 14, the following facts should be considered in determining a well-known trademark:

  1. Knowledge in the Member Concerned

  According to Recognition and Protection of Well-known Trademarks Provisions, the second clause of article 2, the relevant public include consumers related to some certain goods or services that designated by the use of trademark; other operators who produce aforementioned goods and services and; sellers and other concerned who are involved in distribution channels. For example, goods and services which use certain trademark belong to the computer information technology,then the knowledge in relevant members related to computer information technology is exactly the Knowledge in the Member Concerned. Whether numerous members who are not related to computer information technology know the trademark or not, have no impact on well-known trademark recognition. That is to say, well-known trademark is not known by all the people or it have a high reputation among the entire public, but well-known among the relevant consumers.

  2. Continuous usage Duration of Trademark

  The primary way the owner of trademark exercise rights is to utilize his trademark. Only in the transaction, will the value of trademark reflect and invisible property rights convert into material possessions whether the trademark is registered or not. As for the unregistered trademark, only continuous usage can the trademark reflect its existence and, bring about prominence which gives birth to popularity, on the contrary, the public can not get any knowledge about the trademark, let alone well-known. As for the owner of registered trademark, it is his obligation to utilize his trademark. Based on the Recognition and Protection of Well-known Trademarks Provisions, the second clause of article 3, the related materials used to testify the usage duration comprise the utilization of trademark, the history and scope of registration.

  3. Continuous Duration, Degree and Geographical Region of Any Publicity of the Trademark

  As market competition has become more and more intensified at the present, not only the goods producers but also service operators make publicity and promotion of products the most significant matter, which intensified continuously, particularly with the development of communications technology and information network technique. The media, including radio, television, newspapers and the Internet have more and more obvious advertising effect, many people's knowledge about a certain brand account for all kinds of publicity producers and operators make. So a clearer information about the trademark's knowledge in the public in certain region can be obtained, based on the knowledge of continuous duration, degree and geographical region of any publicity of the trademark. According to Recognition and Protection of Well-known Trademarks Provisions, the third clause of article 3, the related materials used to testify the continuous duration, degree and geographical region of any publicity of the trademark, including the ways and geographical region of advertisement and sales promotion, the media category and advertisement throws in quantity, etc.

  4 Records of the Protected Well-known Trademark

  If a trademark has ever been protected in China as a well-known one, then the owner of the trademark could offer the relevant documentary identifications, which have very crucial reference value to identify whether the trademark is well-known or not. If a trademark has ever been protected abroad as a well-known one, then the owner of the trademark also could offer the relevant documentary identifications, which have the same crucial reference value to identify the well-known trademark. According to Recognition and Protection of Well-known Trademarks Provisions, the forth clause of article 3, the related materials used to testify records of the protected well-known trademark, including the materials refer to protection of the trademark as a well-known one in China, other countries or regions.

  5. Other evidential factors that can indicate the trademark is well-known

  This is a catch-all clause in accordance with the growing practical needs for well-known trademark protection. According to Recognition and Protection of Well-known Trademarks Provisions, the fifth clause of article 3, other evidential materials that can indicate the trademark is well-known, including the materials regarding the recent 3 years of output, sales volume, profit payments and tax turnover and sales territory of the principal commodities using this trademark.

  According to the Recognition and Protection of Well-known Trademarks Provisions, article 10: the Trademark Office and Trademark Review and Adjudication Board should take all factors of article 14, Trademark Law, into consideration comprehensively, but the trademark has no need of satisfying all the factors of this article.

  Source: IPR in China

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