Research On The Revising Of Trademark Opposition Procedure

The trademark opposition procedure is an important part of the trademark examination and trial procedure system.Whether the trademark opposition procedure is reasonable and appropriate is related to the protection of prior trademark and other rights holders and interested parties.It also concerns the efficiency and quality of trademark right granting and verification,and it is also inextricably linked to the maintenance of public interests.The trademark opposition procedure seems to be just one of many institutions in the trademark law,but it may ultimately affect the effect of the entire trademark law.Therefore,major countries and regions attach great importance to the planning and design of trademark opposition procedure,so that it can be improved and play a better role.And the trademark opposition procedure will not only be more smooth and reasonable in legal theory and system logic,but also truly achieve both fairness and efficiency.In the historical process of continuous revising of China's trademark legal norms,the opposition procedure system has never been absent.However,after many revisions,there are still some problems in the trademark opposition procedure system,and today it is also facing new problems.Under the current national and global conditions,it is necessary to continue to revise the opposition procedure based on China's own realities.Therefore,this article takes the revising of trademark opposition procedure in China as the research object,and uses literature research,comparative research,historical research,empirical research and other research methods to conduct research.The Article first focus on the history,problems and urgency of revising trademark opposition procedure.Then it figures out some fundamental legal principles for revising the opposition procedure.After that,the article focus on the revising of concrete institution from four aspects and put forwards some suggestions.The full text is divided into eight parts.The introduction part explains the reasons for studying the problem,reviews the existing research results,defines the scope of the research and presents the research ideas of this article and introduces the research methods.The first chapter discusses the history,problems and the urgency of revising trademark opposition procedure.It provides problem basis and the starting point for the full text.The trademark opposition procedure has gone through three stages: the administrative second-instance mode which is administrative finality under the pre-registration opposition,the administrative second-instance and judicial second-instance mode which is judicial finality under the pre-registration opposition and the pre-registration opposition mode which the procedures after opposition are different.Although it has undergone many revisions and the trademark opposition procedure system has been continuously improved,there are still many problems: lengthy and complicated procedures,which encourage registration in bad faith;unclear positioning of opposition procedures and insufficient supporting systems and other problems.At present,the high-quality development of economy puts forward requirements of trademark brand building and optimization of the business environment,increasing the urgency of revising the opposition procedure;at the same time,actively participating in the global governance of intellectual property rights and implementing the institutional reform also requires rapid amendment of the objection procedure.The second chapter discusses the principles of revising the opposition procedure.It provides legal basis for the full text.There have always been disputes concerning trademark propertization in the trademark law,but this article believes that the essence of trademark rights is property rights,but it is a limited property right.The design of the trademark law should be developed with a property approach,focusing on protecting the property rights of trademark owners.Then,among the three functions that can be realized by the trademark opposition procedure(right relief,social supervision and self-supervision by the administrative agency),rights relief should be the most important function.The revising of the opposition procedure needs to adhere to the positioning of the rights relief procedure.At the same time,the revising of trademark opposition procedures should focus on the efficiency,but it should also take the fairness into account.The fairness in the opposition procedure is to enable the real trademark owner to confirm or maintain the rights,and to ensure the legitimacy of the procedure;the efficiency of the opposition procedure is to minimize the cost of the procedure.The fairness and efficiency of the opposition procedure can be balanced.When the fairness and efficiency value of the opposition procedure conflict,first we should insist that improving efficiency should not harm the static fairness status,and at the same time,we should balance the interests when pursuing the two values dynamically.In addition,the revising of the opposition procedure also needs to focus on systematic thinking to achieve the logical consistency,cohesion and externality of the entire trademark examination and trial procedure and the opposition procedure.The third chapter discusses the mode of trademark opposition procedure.There are four modes of opposition procedure setting: comprehensive review + pre-registration opposition,comprehensive review + post-registration opposition,absolute grounds review +pre-registration opposition and absolute grounds review + post-registration opposition.Each mode has its advantages and disadvantages.There are many advantages to canceling the review of relative grounds and it is theoretically worth adopting.At the same time,we should combine pre-registration opposition with absolute grounds review.However,based on China's current reality,it's not the suitable time to cancel the relative grounds review.So do the post-opposition mode and the canceling of the opposition.Thus,now we should insisit the“comprehensive review + pre-registration opposition” model.But we can change to “the absolute grounds review + pre-registration opposition” model when necessary pre-requisites are in place.The fourth chapter discusses the adjustment of specific operating rules of opposition procedure.At present,the statutory time limit for opposition applications in China's trademark legal norms is too long.Based on the analysis of the necessity of shortening the statutory time limit for opposition applications,the first section explores the feasibility of shortening the statutory time limit for opposition applications to two months and conducts risk assessment.The second section analyzes whether to reserve opposition solely on absolute grounds and other non-identifying prior rights,and proposes to cancel the opposition on absolute grounds alone,but prior rights holders and interested parties who apply for oppositions can also put forward the absolute grounds.At the same time,it is recommended that the rules that the non-identifying prior rights holders can put forward opposition should be reserved.At the end of this chapter,the article discusses the adjustment of specific operating rules during the opposition review stage,including whether the opposition department can review the reasons that the opponent did not submit,that is,whether the opposition should adhere to the ex-officio mode or requested by the applicant;the establishment of the opposition defense and cross-examination rules;the organizational form of the opposition procedure(collegiate system or sole-appointment system),choice of review method(written review or oral review),and improvement of the judgement document of the opposition..The fifth chapter discusses the administrative grade system of the opposition procedure.There are four modes: direct litigation after opposition,invalidation/litigation after opposition mode,invalidity/reexamination after opposition mode,and reexamination after opposition.The administrative grade system of opposition procedure in China can be transformed into the first two mode,the first is administrative once-instance and the second is partial administrative once-instance.Both modes are feasible,but comparing the advantages and disadvantages of the two modes,the direct litigation mode is more worthy of adoption.At the same time,under this mode,the current opposition review agency can be maintained,and the opposition department of the Trademark Office of China National Intellectual Property Administration continues to review the opposition.The sixth chapter discusses the supporting system of opposition procedures.This chapter is divided into four sections to study the supporting systems of the opposition procedure: the provision of evidence of trademark prior use by opponents,the punitive measures for oppositions lodged in bad faith,the third-party observation system and the cooling-off period.Through the analysis of the content of each supporting system,the legislation of other countries or regions,the necessity and feasibility of adoption,etc.,the corresponding conclusions are finally reached.The conclusion part mainly reiterates and summarizes the views and suggestions put forward in this article.At the same time,the research value,deficiencies and prospects of this article are put forward.