Well-known trademarks are losing trademark rights-trademark degradation (I).

Trademark is the embodiment of the carrier and vitality of an enterprise's reputation, and it is also a powerful competitive weapon to open up the market. As a sign of brand recognition, trademark has become a household name after accumulated use, but once it has become a common name, losing its significance, facing the danger of being revoked and losing its original value. This is a problem that many enterprises have to pay attention to and prevent.

Trademark degradation refers to the gradual degradation or even complete loss of the trademark's own distinctiveness. The degradation or loss of the distinctiveness of a trademark will result in a trademark that was originally validly registered for use.TrademarkEvolve into a common name for goods and thus enter the common domainUnablefor the exclusive use of the registrant. In short, the trademark degenerated into a generic name that everyone can use.

Among them, the generic name of a commodity refers to the name specified by national standards and industry standards or established by convention, including full name, abbreviation, abbreviation and common name. This includes statutory and agreed generic names. If it belongs to the generic name of a commodity according to the provisions of law or national standards or industry standards, it shall be recognized as a generic name. If the relevant public generally believes that a name can refer to a class of goods, the name shall be deemed to be a common name established by convention. If it is listed as a commodity name by a professional reference book or dictionary, it can be used as a reference for identifying a common name established by convention.

Causes of 1. trademark degradation

(I) trademark owner's own problems

• Trademark distinctiveness itself is weak

When registering a trademark, the trademark owner chooses a trademark that lacks distinctiveness. In the process of use, it is easy to be mistaken by consumers as a product name and evolve into a common name.

For example, my country'sThe trademark "Qingqi" was once synonymous with motorcycles because it described the light and compact characteristics of motorcycles. The trademark "coffee companion" has the characteristics of indicating the function and use of a certain approved commodity, and has been declared invalid many times.

Second,Subjective reasons of trademark owners

The trademark owner deliberately downplays its function of distinguishing the source of goods when using its registered trademark,Improper management through media propaganda, external address, etc,It is actively used as a generic name for goods. As a result, when the public recognizes and disseminates the trademark, it is also used as a generic name to describe the function or purpose of the product, which eventually leads to the trademark being considered by the public as a generic name for goods.

For example, Shenzhen Ranko Company inIn 1999, the trademark No. 1509704 USB flash drive was registered, but the trademark owner used "USB flash drive" as the product name when using it, and deliberately played down the function of the trademark to distinguish the source of goods. On the fixed-label processed products provided by the trademark owner for Founder,WillThe words "Founder USB"printed in itObjectively downplayed.The distinctiveness of "USB" as a trademark. In 2010, the Trademark Review and Adjudication Board made a ruling to revoke the USB trademark. "Jeep" (jeep) is interpreted by the dictionary as: "a small car suitable for off-road driving". "Jeep" is a registered trademark of an off-road vehicle. A similar example is the "Freon" trademark, which is described as the common name for refrigerants.;"Chiba tofu" trademark is allegedIt is a kind of tofu commodity or tofu product.The common name,2022, Trademark JudgeRevokedChiba TofuDetermination of trademark.

Third, trademark rights holders have poor awareness of rights protection

In the face of other unfair competitors"free-riding" behavior, trademark ownerNot doneActively defend rights and stop them in timeand with the corresponding reaffirmation of trademark distinctiveness, resulting in trademark distinctiveness degradation.

(II) social and market issues

Section1Unintentional behavior of business peers and even the public

When a certain type of commodity does not have a unified common name or the common name is not well known to ordinary consumers, the trademark of a new commodity or the trademark with high popularity in such commodities is highly likely to be used to directly refer to such commodities. As a result, with the development of the market, the significance of the trademark itself gradually loses, which can not distinguish the source of the commodity, and finally evolves into the common name of the commodity. This situation is often caused by the inaction of the trademark owner, the public, the media, peers and so on. people are well known"Aspirin Aspirin", "cellophane Cellophane", "thermos bottle thermos", "Rendan", "snowflake" and so on belong to this kind of situation.

For example, Inner Mongolia Hangjinhou Banner Jinsui Food Industry Co.No. 236846 registered the ownership of the snowflake trademark used on flour goods. With the improvement of material living standards and the development of production technology, many domestic flour production enterprises led by Inner Mongolia Hengfeng Food Group Co., Ltd. have launched higher-grade flour than milling, and soon won the favor of the market. Because the color of this flour is whiter than that of the first-class flour, these flour enterprises invariably call it "snow pollen". For this phenomenon, snowflake trademark owners did not take active and effective measures to protect their rights, making "snow pollen" blossom everywhere, resulting in the gradual degradation of the significance of snowflake trademark until loss.

SectionTwo,Intentional torts by competitors in the same industry

Operators in the same industry take improper means to deliberately gradually degrade the distinctiveness of other people's registered trademarks, mainly in the form of confusing or diluting the use of trademarks.It is common to copy or imitate a well-known trademark, apply for registration of a trademark identical or similar to a well-known trademark, or use it directly.

For example,Trademarks such as "Xiaole, Happy Xiaole" have been used by peers as game names without authorization, and have applied for registration of the same or similar trademarks "Happy Xiaole, Bubble Xiaole, Candy Xiaole", gradually diluting the significance of the "Xiaole" trademark. "Meitong" is a registered trademark of Johnson & Johnson, which is the brand of contact lens series with beauty effect designed for the Asian market. Although Johnson & Johnson has cracked down on related infringements, the improper competitive behavior of operators in the same industry is not poor. Now the term "Meitong" has been regarded by the public as a general product of contact lenses.

For the problem of trademark distinctiveness degradation, most countries take the fault of the trademark owner as the premise.Although some of the legal provisions of our country have the problem of trademark significant degradation,.There is no express provision on the distinctive degradation of trademarks..

In judicial practice, ourOn the degradation of trademark disputesWhether the subjective fault of the trademark owner is taken into account in "becoming the common name of the goods approved for use".made an explanation. The reason why a trademark with distinctive characteristics is converted into a generic name after registration, if the trademark owner himself uses the registered trademark as a commodity name, due to the large scale of use, resulting in the consequences of the generalization of the registered trademark, in this case, it shall bear the legal consequences of the revocation of the registered trademark. If the trademark owner actively and appropriately uses the registered trademark itself, but due to the use of the registered trademark as a commodity name by other subjects and the reasons of the public, the consequences of the generalization of the registered trademark will eventually occur, in this case,YesWhether the trademark owner should bear the legal consequences of the revocation of the registered trademark is controversial. especially,In some cases, the trademark owner does not allow other subjects to use its registered trademark as a commodity name, but actively takes appropriate measures, such as stopping it through administrative law enforcement, civil litigation, etc., and the trademark owner has no subjective fault, but Objectively, if it fails to prevent the registered trademark from being generalized, it is also controversial whether it should bear the legal consequences of the cancellation of the registered trademark.

In factEven if the trademark owner is not at fault, as long as the trademark degenerates into the common name of the goods in fact, the retention of the trademark is meaningless to the trademark itself and the trademark owner.

Therefore, it is necessary to face up to the problem of trademark degradation and make a layout to prevent trademark degradation. How to prevent trademark degradation and what measures can be taken?

This will be explained in detail in the next article.