Abstract: in recent years, the malicious registration of trademarks has not only discouraged enterprises and damaged the market order, but also hindered the development of China's independent brands. As the new round of revision of trademark law starts, whether the malicious registration can be made through the revision of laws and regulations has become the focus of the industry.
In recent years, the malicious registration of trademarks has not only discouraged enterprises and damaged the market order, but also hindered the development of China's independent brands. As the new round of revision of trademark law starts, whether the malicious registration can be made through the revision of laws and regulations has become the focus of the industry. At a recent section of 2018 China international brand "trademark comments on the BBS, typical cases malicious registration regulation for the revision of trademark law" parallel to the meeting, the personage inside course of study has carried on the discussion to this kind of problem, called for by modify the opportunity of the trademark law, strengthen the specification of the malicious registration behavior management, set up "blacklist" constraint mechanism, to explore with malicious trademark registered record mechanism governing the malicious behavior.
Malicious registration why frequent
Mention "wang Lao ji" trademark, people more impression still stays in the trademark war between JDB and guangzhou pharmaceutical group and the fight of red can packaging decoration. But in fact, as the holder of "wanglaoji" trademark, GFC also faces the problem of malicious registration. Guangzhou pharmaceutical group Marketing Department minister Chen zhizhao introduced on BBS, in addition to the well-known "wang laoji" trademark, guangzhou pharmaceutical group also found in the market "wang xiaoji" "soil laoji" and other malicious registered trademarks, every year in the fight against malicious registered trademarks on the human, material and financial resources countless.
"The dilemma in the current judicial practice is the principle clause and the 'extensive moralization' of the spirit of legislation, the 'lawmaking' of the 'judicial function', the dislocation between the limitation of resources and efficiency, the 'hindering' of market economy and the 'turbulence' of operation. Tao jun, chief judge of the intellectual property division of the Beijing higher people's court.
Sun ou, member of the trademark review and adjudication committee of the state intellectual property office, believes that the functional departments have encountered many problems in the fight against malicious registration. Second, in the stage of trademark registration examination, there is no clear stipulation that the trademark administrative examination organ rejects the application on its own initiative; Third, the fight against malicious registration procedures of different legal standards.
Zhu jianjun, deputy chief judge of the intellectual property division of shenzhen intermediate people's court, said that China adopts the registration system for the acquisition of trademark rights, and does not require the intention of actual use of trademarks during registration. In this case, the situation of malicious trademark registration and hoarding is very serious, which seriously hinders the healthy development of China's trademark system.
How to regulate the opportunity to amend law
So how to regulate the malicious registration of trademarks? Combined with the recent change of the trademark law, the state intellectual property office of the trademark office, said an official with the relevant article 7 of the trademark law is the principle of good faith as filed trademark objection or the request for invalidation of the applicable terms and conditions, improved used in article 4 of the trademark law to stop hoarding, at the same time can also explore establishing force transfer system with malicious registered civil compensation system, put forward to cancel the trademark registration five years for invalidation of time constraints, and establish the credit supervision system.
"In recent years, the trademark review and adjudication board of the state intellectual property office has systematically applied the trademark law to crack down on malicious registration clauses, and strictly controlled standards for malicious factors when applying other provisions of the trademark law. The person in charge of the trademark review and adjudication board of the state intellectual property office suggested that, in order to strengthen the regulation of malicious trademark registration, the fourth revision of the trademark law could consider reconstructing the trademark registration application examination procedure, cancel the relative reason examination and assume the function of absolute reason examination. Reconstructing the review procedure of objection and non-registration, retaining the pre-procedure of objection and undertaking the function of relative reason review; Announcement of acceptance of application for registration, the examination for absolute reasons and the examination for relative reasons shall be conducted simultaneously.
From the perspective of judicial practice, tao jun believes that malicious registration can be divided into two situations: infringement of "private rights" and "public interests". In terms of value guidance, it should be clearly stipulated that the applicant shall not obviously violate the principle of good faith in applying for registered trademark, and shall have the intention and ability to use the applied trademark. In terms of procedural design, it is suggested that the application differences of the provisions on authorization and confirmation of rights in the trademark law should no longer be distinguished by whether the trademark is authorized or not, but should cover the application of the "whole process" of trademark application, objection, invalidation, revocation, transfer and renewal.
"Trademark as a kind of property rights, from the use of the trademark, is a kind of rights of market competition, to solve the problem of malicious registered, can consider to register priority in adhere to the continental law system under the premise of proper introduction of Anglo-American law system emphasize to use ideas, and solve problems occurred in the practice are taken and deliberately registered." The Chinese academy of social sciences, director of the center for intellectual property rights, China's intellectual property rights law institute executive vice President li md suggest, in trademark law provisions of the applicant for trademark registration, shall submit the relevant trademark has been used or will use evidence and make a series of statements, the trademark office in review application for trademark registration applicant shall be referred to when examined the business scope of the business license records.
Overseas rights protection should be paid attention to
In recent years, the more Chinese enterprises go abroad for international trademark registration, the greater the international influence of Chinese brands, and the more likely they will encounter overseas trademark squatting. There is no doubt about the importance of overseas trademark rights protection.
On August 4, 2017, Chinese ambassador to iquique consulate general plain code generator state administration for industry and commerce, China more than 120 toy enterprise name and trademark by foreign businessmen in the name of the individual in Chile industrial property office (INAPI) are taken, to October 16, 2017, Chile registered people agree with the registered trademark in China returned to the trademark, in the form of transfers of the first user in China, the two sides signed the settlement agreement, there are more than 30 enterprises nearly 50 a trademark in the process of return. Less than three months time, speed, high efficiency, and also again, trademarks overseas rights protection work should be adhering to the "enterprise leading and government guiding, agency participation, industry organization support" principle, give full play to the advantages, the push internal propaganda and guidance, foreign widely used legal and diplomatic means, through a variety of ways to protect the overseas trademark rights and interests of Chinese enterprises.
Liu yi, head of the general office of the trademark office of the state intellectual property office, said that Chinese enterprises' overseas rights protection is a long-term task with a long way to go. In the next step, the trademark office will make great efforts in establishing and improving the guiding mechanism for overseas trademark rights protection, the cooperation mechanism for overseas trademark rights protection, the monitoring and early warning mechanism for overseas trademark rights protection, the processing mechanism for overseas trademark rights protection and the assistance mechanism for overseas trademark rights protection.
If you would like to know more about the trademark issue, please contact huaxu zhengxin intellectual property office at 010-52475305 0317-8583656