How to strengthen the "fence" of trademark protection when the "fairy tale king" is caught in a tug of war for rights
2022-01-08
The protection of intellectual property rights and the prohibition of abuse of intellectual property rights are like two sides of a coin. They are both to make the intellectual property system truly promote social development. Only the awareness and concept of "strict protection" and "no abuse" can cure the malicious rush to register trademarks. Recently, Zheng Yuanjie, the king of fairy tales, publicly announced that she would stop writing the monthly magazine of the king of fairy tales and devote herself to safeguarding the rights of the three trademarks of "pipiru", "Shuke" and "king of fairy tales". Over the past 36 years, fairy tale king has published 495 issues, with a total number of more than 200 million copies, affecting millions of readers. But what bothers Zheng Yuanjie is that many of the characters in his works and the four words "fairy tale king" are frequently maliciously registered. After years of efforts, there are still 672 infringing trademarks waiting to protect their rights. The tug of war for rights exposed the imperfect trademark protection His academic performance is not good. He is not the kind of good child that school teachers like, but he is kind-hearted, just and brave. He has a story - the Chinese boy written by Zheng Yuanjie is called Pipilu. In 1985, with the publication of the fairy tale king, a large number of literary characters such as pipiru, luxisi, Shuke and beta became famous with Zheng Yuanjie's fairy tales, affecting children from generation to generation. However, a few years later, who would have thought that all these characters were registered as trademarks: "Pipilu" became pig skin and meat, "Shuke" became an underwear brand, and "fairy tale king" became the flagship store of children's clothing e-commerce. In these years of rights protection, Zheng Yuanjie was almost "fighting" alone. He memorized the copyright law and trademark law thoroughly, and even risked his life to obtain evidence and protect his rights, but his "achievements" were not brilliant: in 20 years, only 16 of 672 trademarks have successfully protected their rights. In an interview with the media, Zheng Yuanjie revealed that it took him six years and about 90000 yuan to "win" a disputed trademark. Among them, the "tug of war" for the rights of the three trademarks of "pipiru", "Shuke" and "fairy tale king" has lasted for several years. Taking the rights protection of "Pipilu" trademark as an example, after Zheng Yuanjie sued, the trademark of the sued enterprise was initially ruled invalid. Later, the trademark registrant sued to the Beijing Intellectual Property Court and sent it back for retrial. After the relevant review and adjudication organization ruled that the trademark could be used, Zheng Yuanjie continued to sue... Zheng Yuanjie was exhausted because the process of safeguarding rights had twists and turns and did not win the final victory. "This exposes the imperfection of China's trademark protection. Although the trademark law has provisions on the protection of prior rights, it is not perfect." Pan Helin, executive director of the Digital Economy Research Institute of Central South University of economics and law, said that most trademark ownership in China is still the only requirement for obtaining rights, rather than "actual use" and "true intention". However, the international protection of prior rights is the general trend. Abroad, as long as the earliest user can prove his prior use, even if the trademark has been registered for many years, he can apply for revocation. Lawyer Yu Qingkai, director of intellectual property professional committee of Guiyang Lawyers Association of Guizhou Province and senior partner of Beijing Yingke (Guiyang) law firm, believes that the purpose of rushing to register other people's influential character names into their own trademarks is to promote their own goods or services with the influence of character names, which is subjectively malicious, Not legitimate. From the perspective of judicial practice, this unique phrase characters such as "pipiru" and "Shuke" are created by the obligee. Logically, the obligee should enjoy copyright, but there is no corresponding right ownership and protection basis in the current legal system. "Blacklist" may not be able to stop the malicious rush to register trademarks In 2020, there were about 13.4 million trademark applications worldwide, and China ranked first in the world with about 9.3 million trademark applications by category. According to preliminary statistics, by the end of the third quarter of 2021, there were 34300631 valid registered trademarks nationwide, an increase of 6920766 over the same period of the previous year, a year-on-year increase of 25.27%. But in sharp contrast to this, the rush to register is rampant. Young Ding Zhen, who suddenly became popular, was "robbed", the big country's heavy weapon "Tianyan" became a pack of cigarettes, and even "Zhong Nanshan" and Olympic athletes were rubbed into hot spots. In recent years, wave after wave of "rub hot" trademark news has been searched repeatedly. This phenomenon of following the trend and rushing to register has actually been related to the origin of the trademark To the contrary. With more and more trademark registration activities of "rubbing hot spots", one registered trademark after another is ironic. Those trademarks that are registered in a rush are often backed by unimaginable high transfer fees and royalties, and may even promote the malicious registration of Trademarks into a gray industrial chain - the registration fee is only a few hundred yuan, but if the registered trademarks are well-known people, it may involve subsequent transfer and obtain hundreds or even tens of thousands of times of income. Fortunately, the State Intellectual Property Office and relevant administrative law enforcement agencies usually use batch rejection to solve the malicious registration of hot events and characters. For example, after the Chinese Olympic Committee shouted to stop "malicious rush to register trademarks", the official website of the State Intellectual Property Office issued a notice rejecting 109 trademark registration applications such as "Yang Qian", "Chen Meng" and "Quan hongchan". The measures for the administration of the list of serious violations and dishonesty of market supervision and administration, which was officially implemented on September 1 last year, makes it clear that those who submit malicious trademark registration applications that harm the social and public interests will be included in the "list of serious violations and dishonesty". Can this stop the unhealthy trend of malicious trademark registration? In this regard, pan Helin said that according to the trademark law, malicious registration of trademarks belongs to the category of infringement rather than administrative punishment. The list of serious dishonesty has a certain deterrent to trademark registration, but there is still a problem of malicious registration. In judicial practice, the elements of preemptive registration identification such as prior rights and improper means are not clearly defined, and the identification of subjective malice is also controversial. Therefore, inclusion in the dishonest list is only a reference model. The key lies in clarifying the legal boundary of malicious trademark registration and increasing the punishment of malicious trademark registrants. Let the rule of law become the "fence" of trademark protection Last year, the State Intellectual Property Office issued a special notice announcing a special action to crack down on malicious trademark registration. Among them, malicious rush to register the names of major scientific and technological projects, which caused great adverse social impact, and malicious rush to register the names of works or characters with high popularity, were all included in the strike hard targets. The State Intellectual Property Office has stated that it will strengthen overall planning and coordination, timely expose typical cases, illegal individuals, enterprises and agencies, and timely transfer those in bad circumstances to local law enforcement departments for punishment, so as to create a good intellectual property legal environment, market environment and social environment for all kinds of market subjects to compete fairly, carry out innovation and consciously resist malicious rush registration of commercial marks. The outline for the construction of an intellectual property power (2021-2035) proposes that by 2035, China's comprehensive competitiveness of intellectual property will rank among the top in the world, and China will basically become an intellectual property power with Chinese characteristics and world level. In the future, with the increasing protection of intellectual property rights in China, the high-pressure situation against malicious trademark registration will become a new normal. However, in recent years, an act under the banner of intellectual property protection deserves vigilance. Since the recent Sichuan restaurant was sued for infringement due to the use of the word "green pepper" in the dish name, the previous rights protection events of "Tongguan roujiamo" and "Xiaoyao town hu la Tang" have aroused heated public debate about the limit and scope of trademark rights protection. In the view of some people in the industry, the protection of intellectual property rights and the prohibition of abuse of intellectual property rights are like two sides of a coin. Both are to make the intellectual property system truly promote social development. Only the awareness and concept of "strict protection" and "no abuse" can eradicate the malicious rush to register trademarks. It is imperative to "stop leakage" for trademark protection. Zheng Yuanjie suggested on her microblog that a new clause should be added to the Trademark Law: the registration of the names and titles of well-known literary characters originally created by others within the copyright protection period shall be authorized by the original author, and the registered trademark shall not infringe upon the copyright of others. Lawyer Yu Qingkai also suggested to improve legislation to protect the rational use of trademarks. He said that from the perspective of trademark registration, the author did not apply for a registered trademark for the role name and title of his works in time, which would bring difficulties to the follow-up rights protection. However, on the one hand, it takes time and cost to register a trademark. On the other hand, if the current trademark law is not a registration act for the purpose of use, it will be recognized by the intellectual property department as a malicious hoarding of trademarks and may be subject to administrative punishment. From this perspective, the author's application for trademark registration for the role of his works has a certain legal risk. Therefore, the names and titles of such roles should be defined as a new type of intellectual property, or the scope of copyright protection should be expanded to include the names and titles of roles with certain influence used earlier. The industry believes that the "fence" of intellectual property protection can be further strengthened. It is expected that the "plugging" of the rule of law can make some speculators have no loopholes to drill. (he Xinghui) (outlook new era)
Edit：Luo yu Responsible editor：Wang xiao jing
Source：Science and Technology Daily
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