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商標專利

申請註冊歐盟商標的幾個注意事項

歐盟商標指的就是根據歐共體規定的條件而獲得註冊的商標,這樣的商標在歐盟範圍內都是有效的,可以用來識別和區分歐共體內的商品和服務。申請註冊歐盟商標是需要向歐盟商標局或者是歐盟成員國的商標局提出申請,接下來我們就來看看註冊歐盟商標要注意的幾個事項。

  • 如何理解歐盟商標的統一性?
    歐盟商標以及其註冊申請在整個歐盟是有效的,商標的申請以及相應的註冊都會自動延伸到25個成員國,因此將地域保護限定在某幾個成員國之間是不現實的。並且歐盟商標在註冊的時候會由歐共體內部市場協調局進行控制註冊,也就是說是不需要各個國家的工業產權局介入的。
  • 歐盟商標能超越單獨成員國的商標嗎?

歐盟商標註冊體系對其成員國的商標註冊體系是沒有任何影響,包括比利時、荷蘭、盧森堡等體系。企業是可以自由選擇,無論是單獨成員國商標還是歐盟商標,都可以根據自己的需要來選擇註冊。

  • 什麼樣的標記可以被註冊為歐盟商標?

歐盟商標是可以包含任何可以使用的圖表來代表的標記,尤其是文字,也包括人名、圖案、字母、數位、商品形狀或其包裝外觀等等,只要這些標記可以將一種商品或者是服務用途,與其他種類的用途分開即可。

所以以下的標記都是可以在註冊商標的時候使用的:

  • 包括字母、數位或是字母、數位和文字的組合形式的文字標記;
  • 含有或者不含有文字的圖形標記;
  • 彩色圖形標記;
  • 顏色或者是多種顏色的組合;
  • 聲音標記;
  • 三維立體標記。

以上幾點就是註冊歐盟商標的幾個注意事項,大家在註冊申請之前一定要瞭解清楚。

 

資料來源: CtR智群知識產權事務所

 

Meeting the Non-obviousness Requirement In Patent Applications

Every inventor worth his salt should familiarize himself with the non-obviousness requirement in patent applications. Otherwise, even a novel and original invention will not be granted a patent by the United States Patent and Trademark Office (USPTO). But what exactly does the USPTO mean by non-obviousness and how can you meet it?

 

But first, we have to emphasize that while novelty and non-obviousness are different in many ways, the two terms often overlap in a practical sense. The reason for it is that both can be measured in terms of the absence of prior art.

 

What Makes an Invention Non-obvious?

Unfortunately, the standards for determining the obviousness and non-obviousness of inventions are as clear as mud. The USPTO patent examiners – and the judges in patent litigations, for that matter – have plenty of leeway in making related decisions, a current reality that inventors should be aware of.

 

If you’re an inventor, keep in mind that it doesn’t necessarily demand genius-like craftsmanship, originality, and vision to create a non-obvious design. In many cases, it only requires the extraordinary ability to visualize ordinary things in a new or different manner.

 

There are times when combining things is easily apparent and there are times when it isn’t. The requirement of obviousness then becomes trickier than it sounds, especially as obviousness itself is both a subjective and objective (i.e., fact-based) inquiry.

 

But there’s a way to determine if your invention meets the non-obviousness requirement. Basically, an invention can be considered as obvious when other persons knowledgeable about the field where it belongs will look at it and consider it to be generally known. The known aspect isn’t exactly known per se but will be known if several references are combined.

 

How Can Non-obviousness Be Demonstrated?

Keep in mind that the inventor has the burden of proof, so to speak, in proving the non-obviousness of his invention. This can be done in several ways including the following:

 

  • Using a familiar shape in an unfamiliar manner
  • Making slight to significant changes to an existing design thereby creating a striking visual effect that others haven’t done before
  • Omitting certain elements generally associated with similar designs
  • Juxtaposing specific elements thereby creating an unexpected statement, whether visual or auditory

 

There are other ways to meet the non-obviousness test, too. If your design has been or continues to be a commercial success; it has unexpected visual appearance; it has been copied by others; it has been praised for its originality by others in the field where its utility is evident; it was copied by others but they were unsuccessful at generating the same results as the invention; or it was created when others said it couldn’t be done.

 

Do these concepts make for more confusion? If you answered yes, then you should consider hiring a patent agent or lawyer or agent with a comprehensive experience in meeting the five requirements of patent approval.

 

資料來源: CtR智群知識產權事務所

 

如何申請註冊歐盟專利?

近些年申請註冊歐盟專利的企業越來越多,很多企業都走出了國門、走向世界。而且不少的企業都不只局限於單一申請中國專利,可以說申請國外專利已經成了技術出口的一把保護傘,接下來我們就一起來看看如何申請註冊歐盟專利。

  • 提出申請

申請可以使用英語、德語和法語這三種語言任何其一,向歐盟專利局提出專利申請。在提出申請之後的一個月左右,歐洲專利局會發出通知。

  • 歐洲專利局檢索

在提交專利申請的時候是必須要提出檢索請求,並且也要繳納檢索費用。自申請日起的兩年左右,申請人將會收到由歐洲專利局出具的檢索報告,同時也會附上一份對你的申請可專利性的初步審查意見書。

  • 公佈專利申請

歐洲專利將會在自申請日起的18個月內公佈專利申請。

  • 提出實質審查請求和實質審查

申請人應該在申請的同時,或者是在歐專局的檢索報告公佈之日起,6個月內提出實質審查請求。在該審查請求提出來的同時,是需要從歐洲成員國中指定一個具體的成員國,並且也要繳納審查費和指定費。

  • 歐洲專利授權

當審查通過之後歐洲專利局會發出授權通知的影本,申請人需要選擇同一授權文本並且允許申請人進入授權程式,或者對文本或權利要求進行修改。與此同時也應該交付授權費用並且遞交權利要求上的其他兩個語種的翻譯譯文。

  • 專利申請通過

一般申請人在收到專利授權通知之後,申請人就必須決定在制定國名單中選擇一個生效國,然後通知歐洲專利局該專利在哪些國家生效。確定生效國之後根據規定需要將專利的全部內容進行翻譯,並且交給該生效國以便專利生效。

整個歐盟專利的申請時間大約需要3-5年,專利的有效期為自申請之日起的20年。

 

資料來源: CtR智群知識產權事務所

 

Why Hire An Attorney For Your Initial U.S. Trademark Application?

Filing a trademark application isn’t for the faint-hearted, so to speak, because of the time, energy and effort involved in understanding the trademark law, meeting the requirements of the United States Patent and Trademark Office (USPTO), and dealing with the subsequent actions (e.g., issuance of Office Action). For this reason, you should seriously consider hiring an attorney to take care of these matters in your behalf.

 

What can an experienced lawyer, particularly one with extensive experience in trademark laws, do for you?

 

Provide Appropriate Legal Advice

Of course, you can file the application on your own and request the USPTO examining attorney to provide tips that will expedite your application. But the USPTO attorney cannot provide legal advice even if he wants to because otherwise it will be a conflict of interest.

 

The trademark attorney, in contrast, will provide legal advice regarding your application and its related issues. You can get answers to questions like, “Is the mark protectable by the trademark laws? Are the class of products and/or services that the marks apply to identifiable? Are you able to take appropriate action when the USPTO refuses to register the mark?”

 

Think of your attorney as your main man in ensuring that your mark becomes registered and protected from infringement by others.

 

Conduct Searches on the Database

Again, you can search the state and federal databases for similar trademarks as the mark you’re seeking registration for. But it’s such a time-consuming process that you likely won’t have the time and energy for, perhaps not even the patience. Besides, you will likely have other business matters to attend to.

 

With an attorney on board, you can delegate the task to the professional. Your attorney will search the USPTO database of registered trademarks at the federal level, as well as other databases including the state registration database and the common law unregistered trademarks database. The comprehensive search is a must because even non-registered trademarks similar to your mark and used for selling products and/or services related to yours may well prevent you from registering, using and profiting from your mark, no matter if you think it was your original idea.

 

Protect Your Trademark Rights

Your attorney can also provide information that will deepen your understanding of your rights and responsibilities as a trademark owner. You will also be provided with relevant advice about the best ways to monitor and enforce your rights and responsibilities, especially in terms of others infringing on your mark. You should also remember that you may also be charged of infringing on other people’s trademarks and your attorney can provide legal assistance on this matter.

 

The crucial role of your attorney doesn’t stop with the initial application. You can also rely on him or her for meeting the registration maintenance documents, which should be filed on a regular basis. You can then maintain ownership over your mark, a must if you want to continue profiting from it.

 

資料來源: CtR智群知識產權事務所

 

Talk But Protect Your Non-patented Invention

The idea is the heart of the invention. You, the inventor, then must be extremely careful about sharing your novel idea with other people, even with people who can provide assistance to take it from an abstract idea to a real product (i.e., prototype). You should be particularly careful when you haven’t submit your patent application for it yet.

 

Fortunately, there are ways to talk about your non-patented invention and protect it from being stolen by others.

 

Learn the Law

You have to learn the law that applies to patents even before you think about discussing your ideas with every Tom, Dick and Harry who cares to listen. You don’t have to go to law school to understand the patent laws but you should strive to learn the basics, such as the types of disclosures that you can and cannot make while still protecting your idea.

 

You may want to present your idea to a group of angel investors. You may also put it to beta testing so as to test it marketability and profitability. You may want to write a white paper about it. Regardless of what you want to do about your idea, you have to learn the law.

 

Have a Confidentiality Agreement

Also known as a non-disclosure agreement (NDA), a confidentiality makes it clear – and in writing, too, for good measure – between both parties that your invention should be treated as confidential information. As such, the third parties with the privilege to know about it must not disclose or release any information about it to others without your express permission. This is a good idea if you’re talking about it to potential investors, partners, and/or vendors.

 

But remember that an NDA isn’t acceptable to everybody, especially where large investment firms and corporations are concerned. Indeed, you may even be asked to sign an agreement wherein you agree that your idea isn’t a secret at all so the organization has legal protection from liability!

 

Avoid Online Sharing

If you’re the type who likes to share nearly everything about your life online, then you should start cutting back if you have a brilliant idea that can qualify for a patent. When you post your ideas online, whether it’s on your website or on a social media site, you’re exposing yourself to two threats.

 

First, your idea may be stolen by your connections – or by the friends of your friends up to the sixth degree – and then run with it. You may have come up with the novel idea and somebody else profited from or was recognized for it.

 

Second, you’re essentially giving the social media sites where your ideas were posted the right to use it anyway they want. Read Facebook’s Statement of Rights and Responsibilities, particularly on the topic of intellectual property, and you will understand.

 

The best thing to do: File a provisional patent for your invention!

 

資料來源: CtR智群知識產權事務所

 

The Possible Grounds For Trademark Refusal

Keep in mind that not every initial application for a trademark will be granted approval. The United States Patent and Trademark Office (USPTO), specifically the examining attorney assigned to your trademark application, can issue an Office Action outlining the substantive reasons for trademark refusal of your application. This brings us to the question: What are the possible substantive reasons that your trademark application can be refused?

 

Likelihood of Confusion

Keep in mind that the USPTO will conduct a search of its database for conflicting marks only after an initial application has been filed. The examining attorney will determine whether your trademark being applied for has a similar one either still pending or already registered in the USPTO database. The process can take several months so patience is necessary.

 

The marks and the related products and/or services between your mark and the marks of other entities don’t have to be exactly the same for conflict or confusion to be considered. Instead, it’s considered sufficient if both the marks and their related products and/or services are similar in nature. The similarity should be such that consumers will likely mistakenly believe that both of them come from the same source.

 

The similarity can be on anything from sound and appearance to meaning. These can include phonetic equivalents, T.J. Chicken and Tee-Jay Chicken; similar appearance even when one uses another stylized; and meaning like “Lupo” and “Wolf” with both having similar images.

 

Merely Descriptive

The USPTO’s examining attorney will also refuse trademark registration if it merely describes a quality, ingredient, function, characteristic, purpose, or feature of the product and/or service. For example, the mark “Creamy Yogurt” or “World’s Best Bagels” are unacceptable because these merely describe the products instead of being a distinctive brand.

 

Deceptively Misdescriptive

The mark registration application will also be refused if the mark itself misdescribes a quality, ingredient, function, characteristic, purpose, or feature of the product and/or service; and the misrepresentation being conveyed is possible. Examples include “THC Tea” for tea-based beverages without THC.

 

Both the merely descriptive and deceptively misdescriptive grounds for refusal also applies to primarily geographical circumstances. There are several instances when it happens including:

 

  • The mark’s primary significance is a generally known geographic location; the consumers/buyers will likely think that the products and/or services come from the place stated on the mark; and the mark identifies the specific place of origin of said products and/or services. This applies to merely descriptive marks.

 

  • In case of a deceptively misdescriptive mark, its primary significance is a generally known geographic location; the consumers/buyers will likely think that the products and/or services come from the place stated on the mark; the products and/or services don’t actually come from the stated place; and the misrepresentation will be a significant factor in the decision-making of consumers.

 

With these strict requirements, you are well-advised to hire an experienced trademark attorney and consultant so that your initial application will have a higher chance of being approved.

 

資料來源: CtR智群知識產權事務所

 

申請註冊美國商標有何優勢?

商標註冊是有地域性之分的,也就是說商標權是有著嚴格的地域性的,在中國註冊的商標是能夠享有中國商標的專用權,在美國註冊申請的商標與在中國註冊申請商標是有區別的,在美國註冊商標採用的是商標使用優先的原則。那麼申請註冊美國商標有何優勢或好處?

註冊美國商標對企業的好處是很多,主要有以下幾點:

  • 有助於企業打造國際品牌以及打造中美品牌

企業註冊了美國商標之後,就可以與國內商標聯合進行宣傳,那麼進一步就可以打造屬於企業的國際品牌。

  • 保護產品外貿也能獲得美國商標法的保護

美國註冊商標採用的是優先使用的原則,但其使用的時候是有限制的,比如說有需要兩個州以上銷售你的產品的要求等,那麼之後註冊後才能更好地保護自己的商標。

  • 避免商標侵權

上文中提到美國採用的是使用在先的原則,先在美國使用商標一般都是視為優先擁有商標權的,並且大多數在美國的專利商標局是沒有登記的。那麼企業在出口的時候很有可能侵犯到他人的商標權,進一步就是導致商品被扣押且還要支付罰金。而註冊美國商標的話就不會出現這樣的問題,註冊的時候就可以知道有沒有相似或者一樣的商標在使用,那麼通過之後就可以放心地出口商標。

  • 進入亞馬遜平台必備

若是你的企業打算入駐亞馬遜平台的話,肯定是要註冊美國商標的,這也是入駐其平台的一個大前提。並且由於美國是亞馬遜的發源地,那麼美國消費者在購物的時候也都是習慣選擇亞馬遜平台,也就是說企業的客戶是很廣闊的。

最後就是美國人是比較注重知識產權的,若是企業沒有註冊美國商標的話,很可能會流失很多的消費者和供應商,反之則可以帶來不錯的效益。

 

資料來源: CtR智群知識產權事務所

 

Crucial Things To Remember About Your Trademark Application

The United States Patent and Trademark Office (USPTO) conducts an intensive examination of every trademark application submitted by individuals, groups and organizations. Keep in mind that registering your trademark, which can be an image, words or sound, can be a challenging task because of the strict requirements and process, especially if you’re taking it on your own.

We suggest that you hire an experienced trademark agent or attorney to handle the dirty work, so to speak. But it also pays to know the basics of the initial application process since it’s your trademark and the rights and responsibilities that come with it rests squarely on your shoulders.

 

Select Your Mark Properly

If you want to start the trademark registration process on the right foot, you have to select your mark properly. You have to choose it with extreme care since not every mark can be registered with the USPTO and not every mark can also be legally protected. In case of the latter, a mark may be unacceptable as a basis for a legal claim by its owner who wants to prevent others from using a similar mark on related products and/or services.

 

You don’t want to make the rookie mistake of submitting an initial application for your trademark only to find out that it cannot be registered. Aside from checking that, indeed, it can be registered, you have to determine the ease and effectiveness of protecting it based on its strength.

 

You have to take note, too, that USPTO isn’t responsible for the enforcement of your trademark – its primary function is to register trademarks and patents. You, the trademark owner, have the primary and exclusive responsibility for its enforcement including when others are using it to their commercial advantage.

 

You should also take note of the acceptable format of marks before submission to the USPTO. You must also precisely identify your products and/or services that the mark will be applied on.

 

Search the Database

Before you file a trademark application, you should also search the USPTO database for similar marks. Your main goal: To determine whether another individual or organization has already claimed trademark rights similar to your mark and used them on related products and/or services through a federal registration.

 

A clearance search will save costs on trademark registration, too, since the USPTO generally doesn’t grant refunds. Thus, even if your initial application isn’t approved for one reason or another, a refund check won’t be in your mail.

 

You must also know that any and all personal information submitted to the USPTO at any point in the application and registration process becomes public record. Your full name, phone number and e-mail address, and street address will be part of the public database, which may or may not be a cause for concern on your part.

 

資料來源: CtR智群知識產權事務所

 

申請中國商標要注意什麼?

商標是商品的生產者和經營者為了讓自己生產或者經營的商品,與其他的商品區分開來而使用的一種標記。這種標記可以是中文、英文、數位或者是圖形,當然也可以是其中多種以上的組合。其實就是企業的品牌和牌子,那麼接下來我們就來看看申請中國商標要注意什麼?

申請前
若是個人來申請中國商標的話,需要個體戶營業執照以及個人的身份證。若是公司申請中國商標的話,則需要公司的營業執照。之後需要確定一個需要註冊的品牌名字或者是圖形標誌,建議大家最好是多備幾個以免他人已經搶先註冊了。

 

然後可以將確定好的商標名稱進行查詢檢索,看看該商標註冊成功的幾率大不大,要知道商標不是100%就可以註冊成功的,那麼在這之前也要做好心理準備。商標檢索完成若是風險不高的話,之後就可以進行申請了。

 

申請中
需要將用到的註冊資料整理好,交給代理機構他們就可以幫你在網上進行申報,網上申報的速度是比較快的,並且也能保證申請商標的權利,現如今基本上所有的代理機構都是通過網上進行商標註冊申請申報的。

 

要注意的是只有經過國家商標局備案的代理機構,才擁有在網上進行商標申報的資質,因此大家在選擇商標註冊代理機構的時候,一定要注意這個代理機構是否經過了國家商標局的備案。

 

申請後
一般來說中國商標的有效期都是10年,在期滿前的一年若是你需要繼續使用的話,那麼就要對商標進行續展了,續展的時間仍舊是10年。若是在期限內沒有完成續展的話,那麼你的商標就失效了。

 

同時註冊成功的商標若是不使用的話,可以進行轉讓賣給他人也能得到一些經濟收益。

 

資料來源: CtR智群知識產權事務所

 

Mistakes Derailing Your Trademark Application

Yes, you may have a unique trademark – or at least, you think you have it. But before making brash decisions, you should take a step back and remember that the Patent and Trademark Office doesn’t mess around when it comes to the registration process. You may think that it’s easy enough, especially after reading countless articles on the subject matter, but it isn’t because of the strict filing requirements and the bureaucratic procedures.

Arguably, the worst mistakes that you can do before filing a trademark application are these two things.

 

Not Hiring An Experienced Trademark Agent or Attorney

Keep in mind that the trademark application process is a legal proceeding protected by the trademark laws. As such, individuals, groups and organizations can be subjected to penalties including fines, surcharges and suspensions in case of violations of trademark laws.

 

As such, it’s of crucial importance to hire an experienced agent or attorney with a valid license to practice trademark law. Better yet, hire an experienced trademark agent or attorney with a proven track record of success in the field, if you want to increase your chance of success in getting your trademark registered.

 

Of course, you can file the application on your own but there are many pitfalls to such a do-it-yourself approach. You may well find that the documentary requirements can be voluminous and stringent while the process can be bureaucratic. You won’t likely have the right knowledge and skills to deal with the legal process and, thus, make a mess of it.  Your trademark application can be delayed and its registration jeopardized.

 

Not Checking That Your Mark Can Be Registered

Your trademark application must be in compliance with many legal requirements before it can be approved for registration. You don’t just fill in the forms, whether you’re filing online or in paper, even if you’re in a hurry to claim the mark (i.e., competitors are using a similar one), lest you find yourself in a bind.

 

In this regard, you have to ask yourself several questions including:

  • Can your mark actually be registered under the rules and regulations?
  • Can you identify the good and/or services covered by your mark?
  • Can you determine the filing basis for your initial application?

 

Your trademark agent or attorney can answer these questions and provide guidance on several related matters.  With your trademark registered, you have the assurance that your brand names including the slogans and logos used on your products and/or services will be protected from unauthorized use by other entities.

 

資料來源: CtR智群知識產權事務所

 

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