Interpreting The Relevant Provisions Of The New Trademark Law "Prohibiting The Publicity Of Well Known Trademarks"

For well-known trademark The improvement of the system is a prominent highlight of the new trademark law. The amendment stipulates that "production and business operators shall not use the words' well-known trademark 'on commodities, commodity packages or containers, or in advertising, exhibitions and other commercial activities". Violators "shall be ordered by the local industrial and commercial administrative department to make corrections and fined 100000 yuan".

What is the reason and significance of the new "prohibition of well-known trademark publicity" provisions in the amendment? How should we fully understand the new relevant provisions? Can the expected regulatory effect be achieved by relying on these provisions? It is necessary to have a clear and comprehensive understanding of these issues before the formal implementation of the amendment, so as to provide reference for the smooth implementation of the amendment and the realization of its purpose.

　 New content added to the Trademark Law

After the third revision of the Trademark Law of China, the legal rules governing the publicity of well-known trademarks have been established for the first time. The specific legal provisions can be found in Articles 14 and 53. This legal rule limits the subject of "prohibition of well-known trademark publicity" to production and operator, and other subjects engaged in "well-known trademark publicity" are not bound by it. At the same time, the law established the "do not act mode", indicating the legislative attitude of prohibiting the addition of the words "well-known trademark" in the use of various trademarks, that is, requiring producers and operators to "not use the words" well-known trademark "on commodities, commodity packages or containers, or in advertising, exhibitions and other commercial activities". It is worth noting that the expression of the publicity form of well-known trademarks here almost completely refers to the new "trademark use" clause in this amendment. The comparison between the two shows that, on the one hand, well-known trademark publicity and trademark use are closely related, and they have formal similarities; On the other hand, the publicity of well-known trademarks is different from the use of trademarks and does not belong to the exercise of trademark rights. In addition, the law stipulates that the violation pattern will bear the corresponding administrative responsibility, but it has not yet stipulated the civil and criminal liability for "well-known trademark publicity".

　 Great progress has been made in new content

The newly established "prohibition of well-known trademark publicity" related provisions in this amendment is a key first step in regulating well-known trademark publicity, which is of great significance.

First of all, the relevant provisions in the amendment fill the gap in the direct legal basis for regulating the publicity of well-known trademarks at the legislative level, which will help curb the abuse of rights and better balance the interests of well-known trademark owners with those of other trademark owners, consumers and social public interests.

Moreover, for the regulation of well-known trademark publicity, taking the lead in defining the subject, mode, legal liability and other issues of well-known trademark publicity in the trademark law is not only conducive to using existing trademark management resources to enhance the feasibility of relevant measures, but also can provide reference for the specific application of other legal norms in regulating well-known trademark publicity or legislative improvement.

　 There are still small flaws after progress

However, from the perspective of comprehensively regulating the publicity of well-known trademarks and completely blocking the chain of interests behind them, the relevant provisions in the amendment are still insufficient, and its implementation effect may not be ideal due to its shortcomings.

As an important manifestation of well-known trademark alienation, the essence of well-known trademark publicity is to regard "well-known trademark" as an honorary title and spread it to the public. In the final analysis, the reason for using well-known trademarks for publicity lies in the huge benefits contained in "well-known trademarks", which is also one of the root causes of the alienation of well-known trademarks in China. Based on this essence, the publicity of well-known trademarks in a broad sense should at least include intermediaries and local government The propaganda behavior of.

It should be noted that although the huge benefits behind "well-known trademarks" have different forms of expression for enterprises, intermediaries, local governments and other subjects, their essence is interrelated and interactional. From the perspective of completely blocking the improper interest chain behind the "well-known trademark", it is necessary to regulate the well-known trademark publicity behavior of these major subjects, otherwise the benefits obtained or the impact caused by any party may evolve into the motivation for other subjects to continue to engage in various well-known trademark alienation activities.

In addition, in terms of regulating well-known trademark publicity, there is a lack of general provisions on "well-known trademark publicity", which makes the extension of well-known trademark publicity in a relatively closed state. After implementation, there may be a risk that it can not cope with the more hidden new publicity methods.

　 Perfect combination boxing

Despite its shortcomings, the amendment has indeed taken a significant first step in regulating the publicity of well-known trademarks. In order to further strengthen the legal regulation of well-known trademark publicity in China, we should first strictly implement the relevant provisions of the amendment. For example, the industrial and commercial administration should actively cooperate after the amendment is officially implemented, especially for the production The industrial and commercial authorities shall, according to the actual situation, make unified and clear handling requirements in advance for the packaging or goods with the word "well-known trademark" that are still circulating in the market after their implementation, and prevent the producers and operators from using this as an excuse to delay the implementation of the amendment in disguised form.

In addition, the relevant provisions added in the amendment are preliminary and key provisions on regulating well-known trademark publicity at the level of trademark law. However, for the purpose of comprehensively regulating well-known trademark publicity and effectively managing well-known trademark alienation, the trademark law itself needs to be improved and coordinated with other legal systems. The author suggests that in the future, we should further build a legal regulation system with trademark law as the core, consumer protection law, advertising law and other economic laws as important components, and administrative normative documents regulating the publicity of well-known trademarks of local governments as necessary supplements, so as to comprehensively and effectively promote various well-known trademarks with multi subject participation, complex and diverse forms, and interlocking interest chains behind them rule and regulation 。