知产法官在INTA2022年年会“CTA论坛”发表英文主旨演讲

近日,由中华商标协会主办的2022年INTA年会“CTA论坛”通过线上方式进行。来自国家知识产权局的官员、CTA外国企业会员负责人、律师事务所合伙人等,分别就《商标审查审理指南》解读、外国企业在华商标保护策略、商标法热点问题解析等进行发言讨论。
北京知识产权法院审判第二庭范米多法官通过线上方式参加了此次论坛,并用英文就中国商标司法保护方面的最新进展作主旨发言。(文末附范米多法官英文发言稿全文)
北京知识产权法院法官范米多
国际商标协会简称INTA,是由商标所有人和专业人士组成的非盈利性国际组织,致力于在商标及相关知识产权领域培育消费者信赖、经济增长及创新发展,现有来自全球185个国家的近6500名社团成员,其中包括大、中、小型企业,律所以及非盈利机构。每年举行的年会是INTA会员进行广泛交流的盛会,也是INTA与相关组织机构进行沟通的重要契机。作为全球范围内规模较大、影响力较广的知识产权活动之一,INTA年会备受世界知识产权领域高度关注。
2022年INTA年会重新开启线下模式,并将于4月30日至5月4日在美国华盛顿举行。同时,出于疫情影响考虑,本届INTA年会专门提供了线上参会渠道,开展线上交流会、研讨会等多个版块活动。
论坛上,范米多法官围绕商标司法保护实践的新进展发表了英文演讲。她简要介绍了北京知识产权法院作为专门法院的功能定位、案件特点以及发展成就,就商标司法保护方面的创新做法进行了概括阐述,同时,她结合中国商标法的最新修法情况,分享了有关新类型商标、恶意抢注商标方面的商标行政案例。在演讲中她表示,中国将继续加大对商标等知识产权的保护力度,以开放的姿态平等保护中外权利人合法权益,通过司法裁判推动完善相关国际规则,营造公平公正的法治环境和诚实守信的商标使用环境,打造中外当事人信赖的国际知识产权保护和纠纷解决优选地。
“CTA论坛”在INTA年会期间已举办多届,旨在汇集商标领域的专家就商标品牌热点问题、商标法律及政策的最近动态进行探讨,在INTA年会中受到广泛关注。
范米多法官在本届论坛中的发言,进一步宣传了我国商标法律制度,展示了司法实践新进展,增进了中外知识产权界的相互理解,同时其全程英语演讲也展示了我国知识产权法官的专业能力和良好形象,受到与会人员赞誉。
New Development in Judical Protection of Trademarks
Good afternoon, ladies and gentlemen. My name is Miduo Fan, and I am a judge from the Beijing Intellectual Property Court. It is a great pleasure to have this opportunity to meet you on line and share with you the new developments in the judicial protection of trademarks by the Beijing Intellectual Property Court in recent years.
I will elaborate on this issue from three aspects .First, I would like to give you a brief introduction about the Beijing IP Court. Then we will focus on the innovative approaches for judicial protection of trademarks. Finally I have some cases to share with you, about the practice of the Trademark Law application.
So let’s look at the first part of this: The Beijing I P Court is one of the first three intellectual property courts,and is the largest specialized intellectual property court in China. It is not only has jurisdiction over civil and administrative cases of intellectual property rights within Beijing Municipality, but also has exclusive jurisdiction over administrative cases of authorization and confirmation of trademark rights throughout the country. Here is a flow chart about the four main kinds of administrative cases of trademark.
During the 7 years from its establishment in 2014 to 2021,the Beijing IP Court accepted over 120,000 IP cases of various types, and the average annual growth rate is 21%. Among them, about 24000 are foreign-related intellectual property cases, accounting for 20% of the total number of cases received, with parties in more than 100 countries and regions across five continents.
To strengthen judicial protection of trademarks, create a preferred venue for international disputes of intellectual property rights. The Beijing IP Court innovated and improved the litigation system, manifested in the following aspects:
First, improving trial efficiency. the pilot program of classification of cases was conducted so as to promote the separation of complicated cases from simple ones. Established pre-litigation and diversified dispute settlement mechanisms,so that more obstacles to trademark registration applications are removed during the conciliation period. A speedy trial mechanism for Administrative cases and for civil second instance cases.During the pandemic, greatly promotes the application of electronic litigation ,case filings, trials, announcements on rulings, and other litigation services have been put online to give litigants easier access to lawsuits and improve work efficiency through full use of information technology.
Second, combating malicious trademark registration consistently. Hold  press conferences, publicly announces cases and releases typical cases. strictly implement the standards of adjudication in trademark cases to avoid malicious registrants.Imposing greater penalties for malicious infringement. Issued Reference on the Application of Punitive Damages in the Trial of Civil Cases of Infringement of Intellectual Property Rights, which aims to guide courts to accurately apply punitive damages and punish serious infringements of intellectual property rights by clarifying judgment standards.
Third, equally protects the rights and interests of both Chinese and foreign parties with an open attitude. Protected world-famous trademarks such as "LAFITE/Lafite", "FACEBOOK" and "Tesla", and effectively assisted a number of internationally renowned enterprises such as Huawei, Samsung, Apple and Qualcomm in reaching win-win cooperation in the global arena.It is becoming one of the preferred destinations for international IP-related lawsuits.
As the exclusive court of jurisdiction for administrative cases of the first instance, the trademark authorization and confirmation cases in the Beijing IP court account for 64.0% of the total number of cases received and concluded, with an average annual growth rate of about 25%.
I would like to share a few administrative cases of trademarks with you, so that we can have a further understanding of the judicial practice in China.
First, the registration of new types of trademarks. the Tencent sound trademark registration case is the first administrative dispute case over the rejection of a sound trademark after the Chinese Trademark Law was amended. Tencent filed for trademark application of its beeping sound which consists of a tone, “Di Di Di Di Di Di,” the notification ring for an incoming message of its popular instant-messaging and social network software named QQ. The Trademark Offic rejected Tencent’s trademark application on the basis that the sound in issue was too simple and indistinctive. Tencent subsequently appealed to the Court. Finally The Court held that “the beeping sound in issue consists only one sound element ‘Di’ ,but has its special traits of a sound with high-pitched, continuous and speedy elements accompanied by unique rhythm and sound effects, which makes it uncommon in daily life, therefore, it is not a ‘simple sound’ . Furthermore, the QQ software has a remarkable market share with high reputation, hence a unique connection has been established between the beeping sound and the QQ software as well as with Tencent.” Accordingly, the sound trademark has acquired distinctiveness for the trademark purpose and should be registered in instant messaging software.And the second trial by the Beijing high people’s court upheld the above content.
Second, malicious registration case.After the further imprvement of the Trademark Law ,the main chage in the legal provisions are add article 4 to regulate malicious registration. Article 4 stipulates that “applications for trademark registrations in bad faith which are not intended for use shall be rejected”. You can see the chart , under the following circumstances, the applicant may be determined to violate the provisions of Article 4 of the Trademark Law. If any trademark applicant obviously lacks the true intention of use and is under any of the following circumstances, this applicant may be determined to violate the provisions of Article 4 of the Trademark Law: Applying for registration of the trademark identical with or similar to that of various subject or the same subject with certain popularity or higher distinctiveness; Applying for registration of the trademark identical with or similar to any other commercial signs other than trademarks of others, or any name of place, scenic spot, building and others with certain popularity. All these provisions need to be regarded as a serious circumstance. Apart from that, applying for registration of a large number of trademarks without good reasons also can be determined to violate Article 4.
Given that Article 4 of the Trademark Law is a absolute reason and guiding principle, in practice, it is mainly regulated according to specific provisions such as Article 13, Article 15, Article 30, Article 32 and Article 44.1 .
Article 32 of the Trademark Law stipulates an application for trademark registration shall not prejudice any pre-existing right of others. It is prohibited to forestall the registration, through any improper means, of a trademark that is already used by another party and has produced a certain influence. Generally, the type of prior is defined by law, for example, the right to a name, portrait right, industrial design patent right, copyright and the trade name right of the enterprise name and so on. In recent years the commercial interets rights can be seemed as prior right Under certain conditions, the title of the work and the name of  characters in the work will be protected by Article 32, as long as the following requirements are satisfied: the name has certain influence; applications for trademark registration are filed in bad faith, and the trademark is identical with or similar to a name that is easy to create confusion to the relevant public.
Article 44 of the Trademark Law states that “where a registered trademark was acquired by illicit means, the Trademark Office shall declare invalidation of the registered trademark.” Specifically including the improper use of public resources to seek improper benefits.
In the "Frozen" series of trademark invalidation administrative cases, the 42 series of “Frozen” registered trademarks were transferred from Jialan Company (伽蓝) to Meihui Company (美惠). Disney Enterprises, Inc. filed a request for invalidation of the series of trademarks, stating that it be found to have prior "commercialized rights" to the movie title "Frozen", which should be protected under Article 32 of the Trademark Law. The Trademark office examined the movie title "Frozen" and determined that it should be protected as a prior "commercialized rights" and invalidated 36 of the series of trademarks at issue. Meihui filed a series of administrative lawsuits to the Beijing IP Court. After hearing, the Beijing Intellectual Property Court held that the text of the trademark logo was the same as the name of the movie "Frozen", and that the movie "Frozen" had a high reputation, and that the use of the trademark in goods related to the movie industry had damaged the prior commercialization rights of Disney. However, the use of "trees, grains (cereals), plants" and other commodities is different from the coverage of movie in the current commercial environment, which is not easy to mislead the relevant public. But Meihui has applied for registration of more than 2,000 trademarks, including 50 "Frozen" trademarks in all 45 categories, in which some of the applications have been rejected. It is hard to prove Meihui has the intention of actual use. Its large-scale trademark grabbing behavior has harmed public order and public interest. In the end, the court of the first instance invalidated the approved use of the registered trademark on some goods that were "identical, similar or substantially related" according to Article32 of the Trademark Law. On other goods that are far from "relevance" and have no actual intention of use, were declared invalid according to Article 44(1) of the Trademark Law. In the second trial, the appellant, Meihui, withdrew its appeal in this series of cases. This series of cases have made useful exploration for the protection of the commercialization rights, protecting Disney’s intellectual property rights in accordance with laws.
Judicial protection of trademarks is still a long way to go, and the Beijing Intellectual Property Court will continue to increase the protection of trademarks and other IP rights in the future to create a fair and just environment for the rule of law; an honest and trustworthy system for the use of trademarks. That’s all I want to share with you, thank you for your listening!

上一篇:新祥旭考研:山东大学宪法与行政法学考研备考详细经验指导



下一篇:家长在群里花式飙英文,对学生的称呼很尴尬,反应过来想撤回已晚