Intellectual Property Law Unit Two

Trademark Right Unit Two

The classification and registration of the trademark Lesson Five

Intellectual Property Law Unit Two: Trademark Right Key points the classification of trademark 1 the Substantial requirements of trademark registration 2 the excluded area of trademark objective 3

Intellectual Property Law Unit Two: Trademark Right A. the classification of trademark  A trademark is a product of commodity economy. With the development of commodity economy, classification of trademark increase and the scope of using trademark widen. In practice, trademark can be classified according to different standards.

Intellectual Property Law Unit Two: Trademark Right  Commodity marks are essentially trademarks that are used in the sale of goods. Service marks are essentially trademarks that are used in the sale of services instead of goods. Besides, trademark and service marks are identical in all respects. 相同的 方面

Intellectual Property Law Unit Two: Trademark Right  Associated marks are marks nearly resembles as to be likely to deceive or cause confusion if used by a person other than the proprietor; and the marks should be registered as separate trade marks in the name of the same proprietor. 类似 欺骗 混淆 持有者

Intellectual Property Law Unit Two: Trademark Right Associated marks

Intellectual Property Law Unit Two: Trademark Right  For instance: the Olympic symbols of associated trade marks registered by Olympic Symbol (Protection) Act in the UK. Associated trade marks shall be assignable and transmissible only as a whole and not separately. 法案 许可 转让 单独地

Associated marks London2012.com The words ”Olympic” or ”Olympics” The British Olympic Association logo The words ”Olympiad” or ”Olympiads” The Olympic motto “Citius Altius Fortius” The Team GB logo The words “London 2012” The symbol of the Olympic Rings The words ”Olympian” or ”Olympians”

Intellectual Property Law Unit Two: Trademark Right  The Defense marks are usually the famous trademarks which have been registered in all fields of commodities Simultaneously, regardless of those not the same or similar with its using field. For instance: the trade mark of Coca-Cola or Harry Potter. 同时的 不管

Intellectual Property Law Unit Two: Trademark Right  Collective marks are owned by an association whose members used them to identify themselves with a level of quality and other requirements set by association. Examples of such associations would be those representing accountants, engineers, or architects. 协会 成员 标明 代表 会计建筑师

Intellectual Property Law Unit Two: Trademark Right  Certification marks are given for compliance with defined standards, but are not confined to any membership. They may be granted to anyone who can certify that the products involved meet certain established standards. The internationally accepted “ISO14000” environmental management standards are an example of such widely-recognized certifications. 遵守 特定标准 资格 证明 已确定的 环境质量管理体系

Intellectual Property Law Unit Two: Trademark Right  According to the notedness, trademark can be divided into common trademark and famous trademark. Famous trademarks, or “well-known trademarks”,are those which are used for a long period with far-reaching influence and widely known to consumers, and under which commodities are sold in large quantities. 著名的 众所周知的 数量

Intellectual Property Law Unit Two: Trademark Right B. the Substantial requirements of trademark registration To be registered, a trademark must be  1.Be capable of literary and graphical representation  2.Be distinctive  3.Not conflict with right obtained by others earlier  4.Not use forbidden marks 表现 显著性的 冲突 被禁止的 禁用的

Intellectual Property Law Unit Two: Trademark Right  The trademark must have the essential component elements required by the law. According to the provision of Article 8 in the “trademark law”, any visible mark which can distinguish the commodities of a natural person, legal entity or entity from others can be the trademark for registration. 组成的要素 规定、条款 条款 可视性的 实体、个体

Intellectual Property Law Unit Two: Trademark Right  According to the provision of Aticle9 and Aticle11 in the “trademark law”, the trademark applying for registration must have distinctive features for easy indentification. So called distinctive features, refer to the fact that the trademark applying for registration should have notable features which can distinguish it from another trademark of the same type of commodities, and enable consumers to recognize the producer or the operator of the commodity with the help of the trademark. 识别所谓 显著的 经营者

fanciful or arbitrary suggestivedescriptivegeneric distinctive weaken gradually

Fanciful Trademark 臆造商标

arbitrary Trademark 任意商标

suggestive Trademark 暗示商标

descriptive Trademark 描述性商标

Intellectual Property Law Unit Two: Trademark Right  Article 11: The following marks may not be registered as trademarks:

Intellectual Property Law Unit Two: Trademark Right  1) those only having the generic names, designs and models of the commodities concerned; 2) those simply directly indicating the quality, main raw materials, functions, use, weight, quantity or other characteristics of the commodities concerned; and 通用的 图案 模型

502 XXL U盘U盘 generic names, designs ＆ models

main raw materials

Intellectual Property Law Unit Two: Trademark Right  3) those lacking distinctive characteristics. If the marks listed in the preceding paragraph have, through usage, obtained distinctive characteristics and can be easily identified, they may be registered as trademarks 使用

Intellectual Property Law Unit Two: Trademark Right  According to the provision of Article9 in the “trademark law”, besides having distinctive features, the trademark applying for registration should not conflict with the legal right obtained by others earlier. The provision in an improvement on that made in the “Trademark Law ” issued in 1993 according to the requirement of the TRIPS. Before this revision, there were no clear provisions regarding the protection to priority. 与贸易有关的知识产权协议 （ Agreement On Trade-related Aspects of Intellectual Property Right ） 修订 优先权

Intellectual Property Law Unit Two: Trademark Right conflict with right earlier

Intellectual Property Law Unit Two: Trademark Right  According to the provision of Aticle10 in the “Trademark Law”, the trademark should not be excluded under the Trademark law,and not violate public order or morality. 违反道德

Intellectual Property Law Unit Two: Trademark Right  Article 10 The following marks may not be used as trademarks:

Intellectual Property Law Unit Two: Trademark Right  1) those identical with or similar to the national name, national flag, national emblem, military flag or medals of the People's Republic of China, as well as those identical with the names of the specific sites or the names and designs of the symbol buildings of the places where the central government agencies are located; 相同相似 徽章 勋章 代理、机构

Intellectual Property Law Unit Two: Trademark Right  2) those identical with or similar to the national name, national flag, national emblem or military flag of any foreign country, except with the consent of the government of that country; 军事的 同意

Intellectual Property Law Unit Two: Trademark Right  3) those identical with or similar to the name, flag, or emblem of any intergovernmental international organization, except with the consent of that organization and those unlikely to mislead the public; 政府间的 误导

Intellectual Property Law Unit Two: Trademark Right  4) those identical with or similar to the official marks, inspection marks that indicate the controlling or providing guarantee, except with authorization; 5) those identical with or similar to the name or symbol of the Red Cross or the Red Crescent; 官方的 检查指示 保证 授权、认可 新月

Intellectual Property Law Unit Two: Trademark Right 6) those having the nature of discrimination against any nationality; 7) those constituting exaggerated advertising and are deceitful; and 8) those detrimental to socialist morality or customs, or having other harmful influences. 歧视 民族 夸大 欺诈 有害的 风俗

discrimination against any nationality ;

Detrimental to socialist morality or customs

Intellectual Property Law Unit Two: Trademark Right The place names of the administrative districts at the level of county or above or the foreign place names known by the public may not be used as trademarks. However, the place names that have other meanings and those used as part of a collective mark or certification mark are exceptional; the registered trademarks that use place names shall continue to be valid. 例外的 有效的 正当的