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😷 | Amabie, so that "everyone can use it" ... The president's thoughts that became the driving force to confirm the trademark application "rejection"


Photo "Mystery in the sea of ​​Higo (Amabie's figure)" (Kyoto University Library)

Amabie, so that "everyone can use it" ... The thoughts of the president who became the driving force to confirm the trademark application "rejection"

 
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If a written opinion is issued, the trademark registration will be reexamined.
 

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Japanese trademark system

In this item,Japanese trademark system(Nippon no Shohyo Seido) will be explained.in Japan,Trademark lawとUnfair Competition Prevention LawTwo laws are used to protect trademarks.

Protection by trademark law

Definition

in Japan,Trademark lawHas defined "trademarks" and "trademark rights".The definition of a trademark in the Trademark Law is as follows.

Among those that can be recognized by human perception, characters, figures, symbols, three-dimensional shapes or colors, or combinations of these, sounds and other things specified by government ordinances that produce, prove or prove goods as a business. What the transferor uses for the product, or what the person who provides or certifies the service as a business uses for the service
Trademark Law Article 2 Extract

That is, among those that can be recognized by human perception

  • Character → Name of product or service (character string,fontThe format such as the type and style of
  • Graphic → A pictorial representation of a product or service
  • Symbol → Company mark, etc. (company logo, title logo of work name, etc.)
  • Three-dimensional shape → container shape, etc.
  • Color → Corporate image color, etc. by combining two or more colors
  • Sound (used in corporate commercials,Sound logoSuch)

Therefore, it is used by a business operator who manufactures / sells goods (commodities) or provides services (services) to identify them.Characters, figures, symbols, three-dimensional shapes, and colors can be combined.As of April 27, when the Cabinet Order Delegation Provisions were added, none of them are stipulated by Cabinet Order.This is a measure to allow registration of those with increased protection needs in the future without amending the law.

Effectiveness of trademark right

Trademark rights are generated by registration of settings (Article 18, Paragraph 1, the procedure up to registration will be described later).Trademark rights are registered by designating one or more goods or services (hereinafter simply referred to as goods).This is called a "designated product".

Exclusive and prohibited rights

The effect of a trademark right is divided into an exclusive right and a prohibited right, and each has the following effects (note that the words "exclusive right" and "prohibited right" are not used in the text of the Trademark Law).

Exclusive rights
Trademark owners (including exclusive use right holders when so set with exclusive use rights) have the exclusive right to use the registered trademark for designated goods or designated services (Article 25).
Prohibition right
Using a trademark similar to a registered trademark for a designated product, or using a registered trademark or a trademark similar to a registered trademark for a product similar to a designated product (Article 37, No. 1) infringes the trademark right or exclusive use right. It is considered that (Article 37), the trademark right holder or the exclusive use right holder can request the suspension or prevention of infringement, dispose of the product that composed the infringing act, dispose of the equipment used for the infringing act, etc. You can claim the actions necessary to prevent the infringement of the trademark (Article 36).

Each can be organized as follows.[1]

Effective range of trademark rights
Same products and servicesSimilar products and servicesGoods and services are dissimilar
Same trademarkExclusive rightsProhibition right×
Similar trademarksProhibition rightProhibition right×
Dissimilar trademark×××

Trademarks that are not covered by trademark rights

Article 26 stipulates trademarks (including those that are part of other trademarks) that are not covered by trademark rights, such as the common name of the product.If this is the case, the trademark right will not be effective.This is because it is considered unfavorable to have a specific person monopolize the use of common names.For example, even if "Asukarator" is registered as a trademark, if a similar "escalator" is a generic name, the effect of the right relating to "escalator" does not extend to the act of using "escalator" (26). Article 1, item 3).

In addition, even if the trademark of another person is formally displayed on the product or advertisement, it is not a mode that recognizes that the product or service is related to the business of how many people (for example, the right holder). In the case of (not for trademark use), the trademark right does not take effect (Article 26, Paragraph 1, Item 6).For example, formal use of titles, taglines, descriptions, conversations in novels and comics, designs, etc. that are not used as trademarks (as long as it is recognized as not trademark use) does not constitute trademark infringement.[2][3]

Prior use right

With respect to a trademark registered by another person, a person who has used the trademark before registration has the right to continue to use the trademark (Article 33).However, in order for the prior user right to be recognized, it was not enough to simply use the trademark before registration, and it was widely recognized among consumers that the trademark was used (well-known). Is necessary.

Duration

The term of a trademark right is 10 years from the date of establishment (Article 19, Paragraph 1), but it is said that it can be renewed by applying for renewal registration of the trademark right holder (Article 2, Paragraph 10).There is no limit to the number of renewals, so by repeating the renewal, the right can theoretically last forever.Unlike other intellectual property rights such as patents, design rights, and copyrights, trademark rights can last for the value of the name (brand value of the product) as long as the right holder continues to use the name. ) Is not considered to become obsolete over time.On the other hand, the term of the trademark right is set to XNUMX years, and it can be renewed as many times as necessary. When the trademark right can last forever without any restrictions, the right holder can do business. If the trademark right cannot survive due to abolition (bankruptcy), etc., or if the trademark becomes anti-public interest with the passage of time, a large number of registered trademarks that have not been used for a long period of time This is because if the trademark system continues to exist, it will lead to unreasonable results in cases where the original purpose of the trademark system is deviated.

Trademark registration procedure

Trademark registration has the following flow.

  1. Patent OfficeSubmit the application to the Secretary (Article 5).
  2. A formal examination (examination of incomplete documents) is conducted by the Commissioner of the Patent Office.If the document is incomplete, the Commissioner of the Patent Office must order it to be supplemented (Article 5-2, Paragraph 2).
  3. Patent OfficeExaminerBy substantive examination by, it is examined whether the registration requirements (described later) are satisfied (Article 14).
  4. If the reason for refusal is found by substantive examination, a "Notice of Reason for Refusal" will be served on the JPO (Article 15-2).The applicant can resolve the reason for refusal by submitting a "procedure amendment" and amending the contents of the application, or submit a "statement of opinion" within the designated period to refute the examiner's finding.For example, in the case of a reason for refusal to violate Article 4, Paragraph 1, Item 11, submit a procedure amendment to reduce or amend the duplicate designated goods or designated services.
  5. If the reason for refusal is not found (or if the "reason for refusal" is resolved), a registration decision is made (Article 16) and a copy of the decision is served on the applicant (Patent applied mutatis mutandis by Article 17). Law Article 52, Paragraph 2).
  6. If a copy of the registration assessment is served, it will be set by paying the registration fee for 30 years (or "payment in installments" for half a year) within the prescribed statutory period (10 days) from the date of service. Registration is done and trademark rights are generated.
  7. When the setting of a trademark right is registered, the matters listed by the law will be published in the trademark gazette issued by the Japan Patent Office (Article 18, Paragraph 3).
  8. If the reason for refusal is not resolved even after submitting the "statement of opinion / amendment to the procedure" in the examination, a decision of refusal, which is an administrative disposition, will be made within 40 days from the date when the reason for refusal is served. It is done (Article 15).If you are dissatisfied with the decision of refusal, you may request the Commissioner of the Patent Office for a "trial against the decision of refusal" within three months after the copy of the decision of refusal is served on the applicant (Article 3).
  9. In response to the request for a trial against the decision of refusal, the JPO trial body will hear the case, decide whether the trial is successful (acceptance of the request) or unsuccessful (dismissal of the request), and make a copy of the trial decision to the applicant (applicant). (Article 56 of the Patent Act applied mutatis mutandis by Article 157).
  10. If you are dissatisfied with the above trial decision, within 30 days from the date on which a copy of the trial decision was served.Tokyo High Court(Intellectual Property High Court) Can file an action to revoke the trial decision (applied mutatis mutandis pursuant to Article 63, Paragraph 2)Patent lawArticle 178 paragraph 3).

Trademark registration requirements

List the main requirements.

Have the ability to identify own and other products (Article 3)
Names that do not have the ability to identify own and other products cannot be registered because they cannot function as names.As an example of not having the ability to identify own and other products, the common name of the product, etc. (Article 3, Item 1; for example, the name "Apple" for the designated product "apple"), the product, etc. are commonly used. Name (Article 1, Item 3; according to the examination criteria, the trademark "Masamune" etc. for the designated product "Sake"), the place of origin of the product, the quality, etc. are displayed in a commonly used way (Article 1). Item 2. For example, the trademark "Aomori" for the designated product "Apple") is mentioned.However, even if the name is formally considered to have no discriminating power, such as own and other products, it can be registered as a trademark if it has the discriminating power as a result of actual use (3). Article 1. As an exampleGeorgia caseThere is).
Not applicable to each item of Article 4
Article 4, Paragraph 1, Items 1 to 19 lists the conditions under which trademark registration cannot be obtained.Here are some of these that are likely to be applied in practice.
  • Violation of public order and morals (Article 4, Paragraph 1, Item 7)
  • Names that are the same as or similar to the widely known names of others (Article 4, Paragraph 1, Item 10)
  • A trademark that is the same as or similar to another person's registered trademark (Article 4, Paragraph 1, Item 11)
  • Names that may confuse products related to the work of others (Article 4, Paragraph 1, Item 15)
  • Names that may cause misunderstanding of the quality of products (Article 4, Paragraph 1, Item 16)
  • Names that are the same as or similar to well-known names related to the work of others and are used for fraudulent purposes (Article 4, Paragraph 1, Item 19)
One trademark and one application (Article 6)
There must be one application for each trademark.However, multiple products, etc. may be specified in one trademark registration application.
Follow the classification of products, etc. (Article 6)
Designated products, etc. must be listed in accordance with the categories specified in the attached table of the enforcement regulations.For example, chemical products are defined as Class 1, meat is classified as Class 29, and when meat is designated as a designated product, it is described as "Class 29 meat".If an incorrect classification is stated (for example, if it is described as "Class 1 meat"), it will be a reason for refusal, and if only the product is described, and if the classification is not described, it will be subject to the amendment directive.

Cancellation and invalidation of trademark registration

Trademark registration may be canceled or invalidated for certain reasons.The main means of canceling or disabling are:

Opposition
商標登録後も、商標掲載公報の発行の日から2月以内であれば、何人も特許庁長官に対して異議の申立てを行うことができる(43条の2)。異議申立てがあった場合、3人または5人の審判官による審理が行われ、43条の2第1号および2号に定められた取消理由があると判断された場合には、登録は取り消され、権利(専用使用権、通常使用権を含む)は初めからなかったものとされる(取消しの遡及効、43条の3第3項)。
Invalidation referee
If a trademark that violates the provisions of Articles 3 and 4 is mistakenly registered, or if a reason for invalidation arises after the trademark registration, interested parties can request that the trademark registration be invalidated (invalidity). Referee, Article 46).For certain reasons for invalidation for private interest, a five-year exclusion period is set, and after the exclusion period has passed, a trial for invalidation cannot be requested (Article 5).This is because credit is embodied in the trademark after a certain period of time has passed since registration, so the credit that has already been generated is prioritized over the profit of invalidation.As for the reasons for invalidation in the public interest, it is not appropriate to give priority to credit, so there is no exclusion period.
Non-use cancellation trial
The law grants exclusive and prohibited rights to right holders in order to protect the credit embodied in the name, and since the credit is not embodied in the name that is not actually used, the name is not used. You don't have to keep giving protection.Therefore, if the registered trademark has not been used for the designated goods, etc. in Japan for three consecutive years or more, any person can request the cancellation of the registered trademark (Trial for Cancellation of Non-Use, Article 3, Paragraph 50).On the other hand, if it cannot be proved that the trademark right holder (or any of the right holders) used it, the trademark right will be extinguished retroactively to the date of registration of the request for trial (Article 1, Paragraph 50, Article 2, Paragraph 54).In addition, even if you start using the service in a rush to avoid the cancellation after knowing that a request for a trial for cancellation of non-use will be made, you cannot escape the cancellation (Article 2, Paragraph 50).
Trial for Cancellation of Unauthorized Use by Trademark Owner
If the trademark owner uses the registered trademark or a trademark similar to the registered trademark in a fraudulent manner that may lead to misunderstanding of quality or confusion of the source within the scope of the prohibited right, any person shall cancel the trademark registration. A referee can be requested for this (Article 51).In case of cancellation, the trademark right will be extinguished when the cancellation trial decision is finalized (Article 54, Paragraph 1).
Trial for cancellation of unauthorized use by the right holder
Anyone who uses the registered trademark or a trademark similar to the registered trademark in a fraudulent manner that may lead to misunderstanding of quality or confusion of the source within the scope of the prohibited right by the exclusive use right holder or the normal use right holder. , You can request a trial to cancel the trademark registration.However, this does not apply when the trademark owner does not know the fact and has taken due care (Trial for Cancellation of Unauthorized Use by the Licensee, Article 53).In case of cancellation, the trademark right will be extinguished when the cancellation trial decision is finalized (Article 54, Paragraph 1).

Regional collective trademark (revised in 17)

As a result of using the name consisting only of "regional name" and "name of goods (services)", if it becomes known to a certain extent, business cooperatives, agricultural cooperatives, business and industry associations Etc. can be acquired as the right entity.

  1. Qualified persons are unions (corporations) established by special laws such as business cooperatives and agricultural cooperatives, and those whose law guarantees the freedom to join qualified members, business and industry associations, etc. NPO corporations, etc.
  2. A regional collective trademark that can be registered must be widely known, if not widely known nationwide, to the extent that it extends to neighboring prefectures, for example.
  3. If the name is used in an inappropriate way that causes a misunderstanding of the quality of goods (quality of services), it will be subject to a revocation trial.

Trademark registration and terminology

This item includes some computers andBrowsing softwareで表示できない文字(登録商標の丸Rマーク)が含まれています(Details).
  • 商標(TMマーク):正式に登録を受けていない商標。(前述)。
  • 登録商標(®(丸R)、(R)、→Registered trademark mark): 商標登録を受けている商標(2条5項)。
  • Trademark registration: The procedure for registering a trademark right in the trademark register.When registered, trademark rights are generated. (Protection of trademarks that are not registered trademarksUnfair Competition Prevention Lawby)
  • Trademark registration indication: When a trademark owner / licensee attaches a registered trademark, he / she must endeavor to attach it to the trademark, indicating that the trademark is a registered trademark (Article 73). --The specific display method is Article 17 of the Trademark Law Enforcement Regulations.

Protection by the Unfair Competition Prevention Law

Exclusive / prohibited rights in trademark rights are effective for registered goods / registered services or similar ones.

However, well-known trademarks that are widely recognized among consumers and well-known trademarks that are widely known nationwide other than consumers are protected by the Unfair Competition Prevention Law.Regardless of whether the trademark is registered or not, the scope of protection is wide because it is intended for trademark use such as product names and store names by others.[4][5]

footnote

[How to use footnotes]
  1. ^ [1]Effectiveness of trademark rights | Ministry of Economy, Trade and Industry Patent Office
  2. ^ [2]Outline of revision of trademark law in the law to partially revise the patent law, etc. in 26
  3. ^ [3]What is Trademark Infringement? | Japan Patent Attorneys Association Kinki Branch
  4. ^ [4]Unfair competition prevention law text
  5. ^ [5]What is an unfair competition prevention law violation? (METI / Ministry of Economy, Trade and Industry)

References

  • Japan Patent Office Trademark Division "Trademark Examination Standards [Revised 7th Edition]" Invention Association, 2000

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