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    case summary

    1992, Shanghai City Business Administration Council investigation Shanghai City chuanshasunqiao Magnolia fountain pen factory (following referred to Magnolia fountain pen factory) violations "HERO" registered trademark dedicated right case Shi, found the factory production of pen pointed except using Shanghai hero fountain pen factory in pen, and tip, commodity Shang registered of "HERO" trademark outside, also using has "HERB", and "HERD" two a foreign letters trademark. By check, Magnolia fountain pen factory from January 1991 up to incident Shi check, total production standard has "HERB", and "HERD", words of tip 2646303 support, has sales 2495303 support, total was profit 28480 Yuan; while, the factory also production has standard has "HERB" and "China Shanghai" words of Dr pen and bamboo pen 2864 support, total was profit 1283.13 Yuan, above two items profit total 29763.13 Yuan.

    Shanghai municipal industrial and commercial Administration Bureau believes that Magnolia Gold Pen factory above constitute the State Council on cracking down production and distribution of fake and shoddy goods notice of violation [(1992), 28th] 1th 1th, paragraph (1) of the acts listed in, and in accordance with the notice provisions of the 2nd paragraph 1th, decided on July 16, 1993 the punishment is as follows:

    , Confiscating counterfeit tip 151000;

    second, a fine of $ 15000.

    case analysis of

    in this case is a typical case of violations of the right to exclusive use of registered trademarks.

    article 38th of the trademark law, paragraph (1) provides that: "without permission from the owner of a registered trademark, in the same kind of goods or similar goods using the registered trademark identical or similar to the trademark, the" constitute a violation of the right to exclusive use of registered trademarks Act. In this case, the Magnolia Gold Pen factory and Shanghai hero pen factory products are exactly the same, so the "HERB", "HERD" and "HERO" are found magnolias fountain pen factory of violations of the right to exclusive use of a registered trademark of hero fountain pen factory key.

    investigate whether two marks are approximate, mainly from the following three aspects:

    first appearance. This refers to two text, graphics, or a combination of both Visual observing, looking, can lead to misidentification of the consumers. In this case, the three trademarks are English words, each word is made up of 4 letters, the first 3 letters are the h, e, r, that is exactly the same structure and order. Three word fourth letter is o, b and d, respectively, although varied, but their shapes are similar. Meanwhile, Magnolia Gold Pen factory in the practical use of font and exactly like hero fountain pen factory. Because of the small letters printed on the pen tip and consumers it is hard to tell the difference between them, visually easy to cause confusion.

    is the second pronunciation. This is proceeding from their hearing, determine whether two trademark confusion due to the approximate pronunciation. In English, the "HERB" and "HERD" the pronunciation of the two words and "HERO" is a far cry, so people from the pronunciation of "HERB", "HERD" and "HERO" is not likely to confuse.

    third, meaning. This refers to the meaning of a trademark identical with or similar, causing consumer confusion among the sources of goods. In English, the "HERO" means hero, "HERB" meaning herbs, herbs; "HERD" mean, grazing the herd, focus, and so on. Their meanings are completely different.

    in determining whether trademark approximation, should fully take into account the factors of the case, that is, in different cases, due to the different circumstances and trademark personality, the role of these three factors are not the same. In this case in the, due to three a trademark are is by English words composition of foreign text trademark, comes China of general consumers understand English of not more, can accurate difference this three a words of meaning of and accurate read out pronunciation of is more less, second text of image is people understanding and pronunciation of based, if consumers first from image Shang on points not clear three a English words, accurate to understanding they of meaning and pronunciation on no on up. So considering the above three factors. "HERO", "HERB" and "HERD" shall be judged to be similar to trademarks.

    Shanghai Municipal Administration for industry and commerce in the case when a determination, also take into account an important plot, that the Bureau is investigating fake Shanghai Magnolia gold fountain pen factory hero fountain pen factory "HERO" trademark at the same time, revealed that the factory also uses "HERB" and "HERD" of two trademarks. The fact that, Magnolia Gold Pen factory has intentionally. Shanghai hero pen factory of "hero", "HERO" two brand has a long history. Excellent product quality, the consumer enjoys a high reputation. It is because of this situation, Magnolia Gold Pen factory to unscrupulous use of methods used with "HERO" trademark similar cheating consumers, seek illegal interests.

    Shanghai Municipal Administration for industry and commerce under the State Council on cracking down the production and distribution of fake and shoddy goods notice of violation in the present case the qualitative and punished. 2nd 1th, the notice provides that "units and individuals for the production or distribution of fake and shoddy goods, the relevant departments according to their respective responsibilities and Division of labour, according to the country's relevant laws and regulations and the provisions of this circular, and impose a fine, confiscation of illicit proceeds, or of all counterfeit goods seized. "Since Magnolia Gold Pen factory is a typical acts of violations of the right to exclusive use of registered trademarks, therefore cases should be dealt with under the trademark law. Article 43rd of the detailed rules for the implementation of the trademark law, violations of the right to exclusive use of registered trademarks, industrial and commercial administration authorities according to the circumstances, impose illegal business 50% of the sum of profits or infringement fined not more than five times, and may order the infringer to the infringer for damages. In this case, the Magnolia Gold Pen factory in the production of counterfeiting the registered trademark of the product at the same time, violations of the right to exclusive use of registered trademarks of others products, if the case is very serious. However, the factory only to be punished by a fine of 15000 Yuan, this amount is only 52% per cent of the plant's profits from the infringement, in accordance with the provisions of the trademark law is obviously too light.

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