3 “Use” with respect to a mark as used in this Act refers to any of the following acts:
(i)affixing a mark to goods or packaging of goods;
(ii)assigning, delivering, displaying for the purpose of assignment or delivery, exporting, importing or providing through a telecommunications line, goods with affixed marks or goods with marks affixed on their packaging;
(iii)in the course of the provision of services, to affix a mark to articles to be used by a person who receives those services (including articles to be assigned or loaned; the same applies hereinafter);
(iv)in the course of the provision of services, to provide those services by using articles to which a mark is affixed and which are to be used by a person who receives those services;
(v)for the purpose of providing services, to display articles to be used in the provision of those services (including articles to be used by a person who receives those services; the same applies hereinafter) to which a mark is affixed;
(vi)in the course of providing services, to affix a mark to articles pertaining to services received by a person;
(vii)in the course of the provision of services through use of a screen,, by electronic or magnetic means (meaning by electronic means, magnetic means, or other means that is impossible to perceive through the human senses alone; the same applies in the following item), to provide those services by displaying a mark on the image viewer;
(viii)to display or distribute advertisement materials, price lists or transaction documents relating to goods or services to which a mark is affixed, or to provide information on this content, to which a mark is affixed by electronic or magnetic means;
(ix)in the case of sound marks, beyond what is listed in the preceding items, the act of producing sounds when transferring or delivering goods, or providing services; and
(x)Beyond those listed in the preceding items, acts specified by Cabinet Order.
(4)In cases of marks listed in the following items, affixing a mark to goods or other articles provided for in the preceding paragraph is to include those listed in each of those items:
(i)a mark of any character, figure, sign or three-dimensional shape, or any combination thereof, or any combination thereof with colors:formed in the shape of goods, packaging of goods, articles to be used for the provision of services, or advertisement materials relating to goods or services; and
(ii)sound marks:when a sound mark is recorded on a recording medium affixed to goods, articles to be used for the provision of services, or advertisement materials relating to goods or services (including when the goods, articles to be used for the provision of services, or advertisement materials relating to goods or services themselves are recording media).
The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this chapter, a mark shall be deemed to be in use in commerce—
(1) on goods when—
(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and
(B) the goods are sold or transported in commerce, and
(2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.
REGULATION (EU) 2017/1001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 June 2017
on the European Union trade mark Section 2 Article 9
Without prejudice to the rights of proprietors acquired before the filing date or the priority date of the EU trade mark, the proprietor of that EU trade mark shall be entitled to prevent all third parties not having his consent from using in the course of trade, in relation to goods or services, any sign where:
3. The following, in particular, may be prohibited under paragraph 2:
(a) affixing the sign to the goods or to the packaging of those goods;
(b) offering the goods, putting them on the market, or stocking them for those purposes under the sign, or offering or supplying services thereunder;
(c) importing or exporting the goods under the sign;
(d) using the sign as a trade or company name or part of a trade or company name;
(e) using the sign on business papers and in advertising;
(f) using the sign in comparative advertising in a manner that is contrary to Directive 2006/114/EC.
4. Without prejudice to the rights of proprietors acquired before the filing date or the priority date of the EU trade mark, the proprietor of that EU trade mark shall also be entitled to prevent all third parties from bringing goods, in the course of trade, into the Union without being released for free circulation there, where such goods, including packaging, come from third countries and bear without authorisation a trade mark which is identical with the EU trade mark registered in respect of such goods, or which cannot be distinguished in its essential aspects from that trade mark.
The entitlement of the proprietor of an EU trade mark pursuant to the first subparagraph shall lapse if, during the proceedings to determine whether the EU trade mark has been infringed, initiated in accordance with Regulation (EU) No 608/2013, evidence is provided by the declarant or the holder of the goods that the proprietor of the EU trade mark is not entitled to prohibit the placing of the goods on the market in the country of final destination.
審査便覧 Part C Opposition Section 7 Proof of Use, Standard of Proof, EUTMR 第 47 条では、先行商標の真正な使用の証明が求められています。一般的なルールとしては、商標が実際に商業目的で使用される場合、商標の最小限の使用でも真正な使用を証明するのに十分である可能性があります。
11. “상표의 사용”이란 다음 각 목의 어느 하나에 해당하는 행위를 말한다.
가. 상품 또는 상품의 포장에 상표를 표시하는 행위
나. 상품 또는 상품의 포장에 상표를 표시한 것을 양도ㆍ인도하거나 전기통신회선을 통하여 제공하는 행위 또는 이를 목적으로 전시하거나 수출ㆍ수입하는 행위
다. 상품에 관한 광고ㆍ정가표(定價表)ㆍ거래서류, 그 밖의 수단에 상표를 표시하고 전시하거나 널리 알리는 행위
② 제1항제11호 각 목에 따른 상표를 표시하는 행위에는 다음 각 호의 어느 하나의 방법으로 표시하는 행위가 포함된다.
1. 표장의 형상이나 소리 또는 냄새로 상표를 표시하는 행위
2. 전기통신회선을 통하여 제공되는 정보에 전자적 방법으로 표시하는 행위
③ 단체표장ㆍ증명표장 또는 업무표장에 관하여는 이 법에서 특별히 규정한 것을 제외하고는 상표에 관한 규정을 적용한다.
④ 지리적 표시 증명표장에 관하여는 이 법에서 특별히 규정한 것을 제외하고는 지리적 표시 단체표장에 관한 규정을 적용한다.
(2) In this Act, unless the context otherwise requires, any reference—
(c) to the use of a mark,—
(i) in relation to goods, shall be construed as a reference to the use of the mark upon, or in any physical or in any other relation whatsoever, to such goods;
(ii) in relation to services, shall be construed as a reference to the use of the mark as or as part of any statement about the availability, provision or performance of such services;
(2) 本法において,文脈上他の意味を有する場合を除き,
(c) 標章の使用というときは,
(i) 商品に関しては,物理的関係であるか又はその他如何なる関係であるかを問わず,当該商品についての標章の使用をいうものと解釈する。
(ii) 役務に関しては,当該役務の利用可能性,提供又は実施についての記述若しくはその一部としての当該標章の使用をいうものと解釈する。
ドイツ(Germany)
🇩🇪 使用の定義
Gesetz über den Schutz von Marken und sonstigen Kennzeichen (Markengesetz - MarkenG) § 14 Ausschließliches Recht des Inhabers einer Marke; Unterlassungsanspruch; Schadensersatzanspruch
(3) Sind die Voraussetzungen des Absatzes 2 erfüllt, so ist es insbesondere untersagt,
1. das Zeichen auf Waren oder ihrer Aufmachung oder Verpackung anzubringen,
2. unter dem Zeichen Waren anzubieten, in den Verkehr zu bringen oder zu den genannten Zwecken zu
besitzen,
3. unter dem Zeichen Dienstleistungen anzubieten oder zu erbringen,
4. unter dem Zeichen Waren einzuführen oder auszuführen,
5. das Zeichen als Handelsnamen oder geschäftliche Bezeichnung oder als Teil eines Handelsnamens oder
einer geschäftlichen Bezeichnung zu benutzen,
6. das Zeichen in Geschäftspapieren oder in der Werbung zu benutzen,
7. das Zeichen in der vergleichenden Werbung in einer der Richtlinie 2006/114/EG des Europäischen
Parlaments und des Rates vom 12. Dezember 2006 über irreführende und vergleichende Werbung (ABl. L
376 vom 27.12.2006, S. 21) zuwiderlaufenden Weise zu benutzen.
Trade Marks Act 1994, 10 Infringement of registered trade mark.
(4) For the purposes of this section a person uses a sign if, in particular, he—
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market or stocks them for those purposes under the sign, or offers or supplies services under the sign;
(c) imports or exports goods under the sign;
(ca) uses the sign as a trade or company name or part of a trade or company name;
(d) uses the sign on business papers and in advertising, or
(e) uses the sign in comparative advertising in a manner that is contrary to the Business Protection from Misleading Marketing Regulations 2008.
7 Use of trade mark
(1) If the Registrar or a prescribed court, having regard to the circumstances of a particular case, thinks fit, the Registrar or the court may decide that a person has used a trade mark if it is established that the person has used the trade mark with additions or alterations that do not substantially affect the identity of the trade mark.
(2) To avoid any doubt, it is stated that, if a trade mark consists of the following, or any combination of the following, namely, any letter, word, name or numeral, any aural representation of the trade mark is, for the purposes of this Act, a use of the trade mark.
(3) An authorised use of a trade mark by a person (see section 8) is taken, for the purposes of this Act, to be a use of the trade mark by the owner of the trade mark.
(4) In this Act:
use of a trade mark in relation to goods means use of the trade mark upon, or in physical or other relation to, the goods (including second-hand goods).
(5) In this Act:
use of a trade mark in relation to services means use of the trade mark in physical or other relation to the services. 8 Definitions of authorised user and authorised use
(1) A person is an authorised user of a trade mark if the person uses the trade mark in relation to goods or services under the control of
the owner of the trade mark.
(2) The use of a trade mark by an authorised user of the trade mark is an authorised use of the trade mark to the extent only that the user uses the trade mark under the control of the owner of the trade mark.
(3) If the owner of a trade mark exercises quality control over goods or services:
(a) dealt with or provided in the course of trade by another person; and
(b) in relation to which the trade mark is used;
the other person is taken, for the purposes of subsection (1), to use the trade mark in relation to the goods or services under the control of the owner.
(4) If:
(a) a person deals with or provides, in the course of trade, goods or services in relation to which a trade mark is used; and
(b) the owner of the trade mark exercises financial control over the other person’s relevant trading activities; the other person is taken, for the purposes of subsection (1), to use
the trade mark in relation to the goods or services under the control of the owner.
(5) Subsections (3) and (4) do not limit the meaning of the expression under the control of in subsections (1) and (2).
When deemed to be used
4 (1) A trademark is deemed to be used in association with goods if, at the time of the transfer of the property in or possession of the goods, in the normal course of trade, it is marked on the goods themselves or on the packages in which they are distributed or it is in any other manner so associated with the goods that notice of the association is then given to the person to whom the property or possession is transferred. Idem
(2) A trademark is deemed to be used in association with services if it is used or displayed in the performance or advertising of those services. Use by export
(3) A trademark that is marked in Canada on goods or on the packages in which they are contained is, when the goods are exported from Canada, deemed to be used in Canada in association with those goods.
TRADEMARK ACT B.E. 2534 AMENDED BY TRADEMARK ACT (NO. 2) B.E. 2543 AND TRADEMARK ACT (NO. 3) B.E. 2559, Section 110 (Unofficial Translation by DIP)
Section 110 Any person who: (1) imports, distributes, offers for distribution or has in possession for distribution goods bearing a counterfeit trademark, service mark, certification mark or collective mark under Section 108 or an imitation trademark, service mark, certification mark or collective mark under Section 109, or
(2) gives or offers a service under a counterfeit service mark, certification mark or collective mark under Section 108 or an imitation service mark, certification mark or collective mark under Section 109, shall be liable to the penalties provided in those Sections.
References to use of trademark
7. (1) References to the use of a trademark shall be construed as references to the use of a printed or other visual or non-visual representation of the trademark.
(2) References to the use of a trademark in relation to goods shall be construed as reference to the use of the trademark upon, or in physical or other relation to, the goods.
(3) References to the use of a trademark in relation to services shall be construed as references to the use of the trademark as a statement or as part of a statement about the services.
(4) Any aural representation of a trademark shall be construed as references to the use of the trademark.
(5) Where a person has used a trademark with additions or alterations, the Registrar or the Court may decide that the person has used the trademark if it does not substantially affect the identity of the trademark as the Registrar or the Court thinks fit. Use of trademark for export trade or where form of trade changes
8. (1) Where a trademark is applied to goods to be exported from Malaysia and any other act is done in Malaysia in relation to the goods which if done in relation to goods to be sold or otherwise traded in Malaysia, such act would constitute use of a trademark in Malaysia in relation to those goods.
(2) The use of a registered trademark in relation to goods or services where a form of connection in the course of trade subsists between the goods or services and the person using the trademark shall not be deemed to be likely to cause deception or confusion only on the ground that the trademark has been or is used in relation to goods or services where a different form of connection in the course of trade subsisted or subsists between the goods or services and that person or predecessor in title of that person.
Falsely applying a registered trade mark to goods or services
47.—(1) Any person who falsely applies a registered trade mark to goods or services shall, unless the person proves that the person acted innocently, be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.
(2) For the purposes of this section and sections 49, 53 and 53A, a person falsely applies a registered trade mark to goods or services if —
(a) without the consent of the proprietor of the registered trade mark, the person applies the trade mark or a sign likely to be mistaken for that trade mark to the goods or services; and
(b) in the case of an application to goods, the goods are not the genuine goods of the proprietor or licensee of the registered trade mark.
(3) For the purposes of subsection (2), a trade mark is deemed to be applied to goods or services if it is used in —
(a) any sign or advertisement; or
(b) any invoice, wine list, catalogue, business letter, business paper, price list or other commercial document, including any such document in any medium,
and the goods are delivered, or services provided (as the case may be) to a person pursuant to a request or order made by reference to the trade mark as so used.
(4) For the purposes of subsection (2) —
(a) a sign is deemed to be applied to goods if —
(i) it is applied to the goods themselves; or
(ii) it is applied to any covering, label, reel or thing in or with which the goods are sold, offered or exposed for sale or had in possession for a purpose of trade or manufacture; and
(b) a sign is deemed to be applied to goods or services if it is used in a manner that is likely to lead persons to believe that it refers to, describes or designates the goods or services.
(5) In subsection (4) —
“covering” includes any stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper; “label” includes any band or ticket.
(6) In a prosecution under this section or section 49, the burden of proving the consent of the proprietor lies on the accused.