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Intellectual Property Office Symposium's Consensus on Trademark Use
Different judges' different opinions on the same issue concerning the trademark use may result in different judgments on the same type of cases, which in turn leads to a high degree of uncertainty about the outcome of a case. To solve such a problem, the Intellectual Property Office held the 2014 Trademark Use Symposium on 8 April 2014. The participants, including the judge from the Intellectual Property Court, the representatives of the IPO, lawyers, and scholars, had a thorough discussion of the divergent judgments collected from different courts and categorized beforehand. After the discussion, some consensus had been reached.
The consensus had been circulated in public and among the judges for their reference. It is possible that the judges will follow such consensus when reviewing similar cases in the future, even though legally speaking, such consensus does not have any binding effect on the judges.
Some of the consensus includes the following issues:
1. The trademark Use as defined under the Trademark Act may possibly include any act in the course of trade no matter whether such a trademark use is for paid transactions or for gratuitous promotions. The key issues should be whether such a use may be capable of being recognized by relevant consumers as a trademark.
2. Reverse counterfeiting, where after the goods were bought, the reseller deletes the trademark logos previously shown on the goods and then labels its own trademarks on the goods for sale without notification to consumers of such situations, will not constitute trademark infringement or violate any other provisions of the Trademark Act but may just consider unfair competition as stipulated under the Fair Trade Act.