Shuke, beta, pipiru and luxisi, the names that accompany the growth of many "post-80s", "post-90s" and even "post-00s", have been published all year round in the fairy tale King founded in 1985. In January next year, this publication, which has published 495 issues and a total of more than 200 million copies, will stop publishing.
Looking at Zheng Yuanjie's microblog, you can find that the writer of "5g surfing" not only interacts frequently with small readers, but also defends his rights for the names of his characters in his books.
On November 15, Zheng Yuanjie published a letter written by Zheng Yuanjie to three trademarks on her microblog, announcing that the monthly publication of fairy tale king would be suspended in January 2022 due to infringement. A month later, on December 15, he released his microblog again and reiterated the suspension of the publication. Then, on his microblog released on the 20th, he also put forward six suggestions on trademark management: establishing a blacklist of malicious registered trademarks, and all rights protection costs should be borne by infringers rather than successful trademark rights protection.
When the interview phone was connected, Zheng Yuanjie was picking up his granddaughter from school, which he had not been in for many years.
"Because the fairy tale king is a monthly magazine, it needs to be cut off in the middle of each month. It has been very busy for so many years. It has been idle recently." According to the previous work and rest time (going to bed at 6:30 p.m.), he still has more than an hour to rest after hanging up the phone. Recently, Zheng Yuanjie began to lose sleep.
According to Zheng Yuanjie, he has protected the rights of the three trademarks for 32 years. "I hope to use this suspension to awaken more people to pay attention to the protection of intellectual property rights in the field of trademarks." Zheng Yuanjie said in an interview with the first financial reporter.
On the 23rd, Zheng Yuanjie posted a microblog saying that the Beijing Intellectual Property Court had made a fair judgment on the infringement of "Pipilu" and "Shuke".
why is it so difficult to protect trademark rights?
"32 years of rights protection for 3 trademarks", "16 successful rights protection in 20 years" and "672 trademarks are on the way to rights protection", Zheng Yuanjie listed some data to reporters. As a monthly magazine that has been serialized for 36 years, "fairy tale king" has a large number of literary role names, which also makes Zheng Yuanjie a trademark rights fighter.
The three trademarks mentioned in the above letter are respectively No. 7197328 (trademark registration number, the same below) pipiru trademark, No. 8229932 fairy tale King trademark and No. 5423972 Shuke trademark.
Zheng Yuanjie said that he created pipiru in 1981, Shuke in 1982 and fairy tale king in 1985. The reporter inquired on the official website of the Trademark Office of the State Intellectual Property Office and found that the trademarks of Shuke, pipiru and fairy tale King were approved to be registered by others in 2009, 2010 and 2011 respectively.
Among them, "pipiru" is the 29th category of meat, dried meat and other products, and "fairy tale king" and "Shuke" are the 25th category of clothing, suits and other products. Before that, Zheng Yuanjie did not register these categories of trademarks. Therefore, it has also fallen into decades of trademark rights protection.
"China's trademark management is a registration review system, which takes registralism as the basic principle of trademark management. Unregistered trademarks are difficult to get better protection." Yang Yong, a researcher at the Institute of intellectual property law and policy of East China University of political science and law, told first finance.
According to Article 32 of China's trademark law, "an application for trademark registration shall not prejudice the existing prior rights of others". The trademark law also stipulates that "within five years from the date of trademark registration, the prior obligee or interested party may request the Trademark Review and Adjudication Board to declare the registered trademark invalid".
In other words, even if a maliciously registered trademark damages the existing prior rights of others, if the registration time has exceeded five years before the application for trademark invalidation, the administrative and judicial organs cannot invoke the prior rights clause to declare the trademark invalid. This means that for trademarks registered for more than five years, Zheng Yuanjie has to invoke other provisions to apply for trademark invalidation.
Liu Chunquan, partner of Duan Heduan law firm, told the first financial reporter that if someone scrambled to register the trademark, it would take a long time to go through administrative procedures. "The trademark system determines that anyone who applies for a trademark first applies, and then the Trademark Office examiner examines it. If he thinks there is no problem, he will pass." He added that due to the continuous development of economy and society, trademark quality and review rules are actually changing, so there will be some differences.
Liu Chunquan explained that when safeguarding trademark rights, it is necessary to put forward trademark objections to the Trademark Office, apply for cancellation of applications such as not using registered trademarks for three consecutive years and invalidation of registered trademarks, and enter the administrative procedure. If you are not satisfied with the ruling issued by the Trademark Office, you have the right to bring a trademark administrative lawsuit to the corresponding court. If the court refuses to accept the judgment of first instance, it shall have the right to appeal to the people's court at the next higher level.
The latest development is that these three trademarks are beginning to usher in good news.
In March 2020, the Trademark Review and adjudication body ruled that the above "Pipilu" trademark registered by Zou could continue to be used. Zheng Yuanjie sued the Trademark Review and adjudication institution to the Beijing Intellectual Property Court. On November 18 this year, the first instance judgment of Beijing Intellectual Property Court was issued, and Zheng Yuanjie won the lawsuit.
"The three trademark courts have ruled. To be more accurate, there are two, namely 'pipiru' and 'Shuk'. The 'fairy tale King' has not yet arrived at the court and is waiting for the invalidation of the national commercial jury." He said.
Zheng Yuanjie told reporters that although he won the lawsuit, it is expected to take about three years to completely end the dispute because the other party has appealed. "If I finish all rights protection trademarks according to the current procedures, it should take 335 years."
experts call on
Zheng Yuanjie's trademark rights protection is not a case.
During this year's Olympic Games, some people maliciously rush to register the names of Olympic champions.
On August 19, the State Intellectual Property Office issued the notice on rejecting 109 trademark registration applications such as "Yang Qian", "Chen Meng" and "Quan hongchan", which showed that individual enterprises and natural persons maliciously registered the names of Olympic athletes such as "Yang Qian", "Chen Meng" and "Quan hongchan" and hot words with specific referential meanings such as "Xingge" and "Tianshen", Submitting an application for trademark registration in order to grab or improperly use others' market reputation and infringe on others' name right and their legitimate rights and interests has had a bad social impact. In this regard, the State Intellectual Property Office condemned and quickly rejected 109 trademark registration applications (including one standard and multiple categories) such as "Yang Qian" No. 58130606, "Chen Meng" No. 58108579 and "Quan hongchan" No. 58265645 in accordance with item (8) of paragraph 1 of Article 10 of the Trademark Law.
For this batch of rejected trademarks, the latest submission time is August 10, and the rejection announcement time of the trademark office is August 19, that is, the shortest time from application to rejection is only 9 days.
During the epidemic, malicious registration of trademarks also occurred frequently.
According to the announcement issued by the State Intellectual Property Office on February 27, 2020, "the Trademark Office will severely crack down on malicious trademark registration applications related to the epidemic": the Trademark Office will strengthen the control of trademark registration applications related to the epidemic and prone to adverse effects, formulate the guidance on trademark examination related to epidemic prevention and control, and clarify the names of persons related to the epidemic, including epidemic virus names Review guidance on relevant signs of disease name, epidemic situation related drug signs, protective product signs, other epidemic situation related signs, etc. Nearly 1000 trademark registration applications related to the covid-19 pneumonia epidemic, such as "Huoshen mountain" and "Leishen mountain", were controlled.
In recent years, the state has also increased the protection of intellectual property rights.
The opinions on strengthening intellectual property protection issued by the general office of the CPC Central Committee and the general office of the State Council in 2019 proposed to speed up the revision and improvement of the patent law, the trademark law and the copyright law, significantly increase the upper limit of legal compensation for infringement, and increase the intensity of damage compensation. In June 2020, the State Intellectual Property Office issued the guiding opinions on further strengthening intellectual property rights protection assistance, which clearly realized the national "one network" of intellectual property rights protection assistance services such as patents, trademarks, geographical indications and integrated circuit layout design. In March 2021, the State Intellectual Property Office issued the special action plan against malicious trademark registration, focusing on the special action against malicious trademark registration across the country.
In the decision to amend the trademark law published in April 2019, it is clear that the amount of compensation for malicious infringement of the exclusive right to use a trademark will be increased from less than three times before the amendment to less than five times, the upper limit of legal compensation will be increased from 3 million yuan to 5 million yuan, and the amount of punitive compensation will reach an international high level.
This year, the outline for building a strong intellectual property country (2021-2035) and the national plan for the protection and application of intellectual property during the 14th five year plan were published. In terms of Comprehensively Strengthening Intellectual Property Protection and stimulating the innovation vitality of the whole society, the plan has improved the legal and policy system of intellectual property, strengthened judicial protection of intellectual property, strengthened administrative protection of intellectual property Specific measures are put forward to strengthen the coordinated protection of intellectual property rights and strengthen the source protection of intellectual property rights.
At the regular press conference of the fourth quarter held by the State Intellectual Property Office on December 8, the relevant spokesman said that since this year, the State Intellectual Property Office has focused on high-quality development, carried out special rectification to crack down on abnormal patent applications and malicious rush registration of trademarks not for the purpose of protecting innovation, and has notified the local authorities of 4 batches of 815000 abnormal patent applications, The withdrawal rate of the first three batches reached 93.1%; A total of 376000 malicious trademark registration applications were cracked down.
Liu Chunquan believes that due to the low cost of trademark registration, some trademark agencies often apply in batches and will not control the trademark names applied by customers. Some people who rush to register do rub hot spots and exploit loopholes. They rush to register trademarks that are homophonic and similar to well-known trademarks. This forced some obligees to build a "trademark moat" and register a pile of trademarks.
Yang Yong suggested that due to the implementation of the trademark registration management system in China and the mixed management system of trademark registration and trademark use in British and American countries, it pays more attention to the trademark use system. Even if it is not registered as a trademark, it can still be effectively protected as long as it can be proved to be used first. In the future, can we suggest that the government better combine trademark registration with trademark use from the perspective of trademark law legislation and management system. In this way, we can avoid a bunch of malicious trademark registration behaviors that are registered and then not used. At the same time, for the obligee, his own rights need to be protected, because whether it is copyright, trademark right or patent right, it is essentially a private right. Obligees need to establish a set of strategies and methods to protect their rights.
"Generally speaking, under the relevant systems of trademark law and trademark registration management, the existing legal system can regulate trademark disputes, but it is more complicated. Therefore, obligees must pay attention to safeguarding their trademark rights. In addition to strengthening their own learning and active rights protection, they also need to protect their rights with the help of professional teams." Yang Yong reminded.
(First Finance)
