Registered trademark without using cancellation system is an important system related tothe use of trademarks. As a sub-system of the quitment mechanism of registered trademarks,it has important significance in those aspects—eliminating those tedious trademarks,protecting limited trademarks resources and maintaining the reasonable existence ofprinciples on registering. But due to the fact that in China the design on registered trademarkwithout using cancellation system is too general, the fact that the design fails to stipulateclearly the meaning of use in the regulation that trademarks are not used, proper reasons fordefences in cancellation, the allocation of the responsibility of proofs and the standards ofproofs, those problems lead to such a condition where there is no a certain standard forjudging in trademark cancellation practices, thereby causing different verdicts in a samecancellation case, which greatly hinders the performance of this system. With the guidance oflegislative purposes, the author, therefore, intends to comprehensively analyze practicalproblems about registered trademark without using cancellation system, procedure problemsand problems of perfecting system. Besides, some further research on disputes related to thissystem will be done and based on it, the essay will respond to the legislative process oftrademark law.In addition to introduction and conclusion, this essay is composed of four parts asfollows.The first part, from two perspectives, namely theory and realistic significance, discussesthe legitimacy of registered trademark without using cancellation system. Through thecomprehensive analysis of the value of trademark functions, the legislative purpose oftrademark law and the theory of the balance of interests in intellectual property, the essayreveals the theory that registered trademark doesn’t use the cancellation system. Through thecomparative study of the ways to obtain trademarks and the analysis of the presentationconditions in China that trademarks are registered but not used, the essay exposes the realisticsignificance of the existence of this system.The second part does the legislative analysis on the registered trademark without usingcancellation system. Based on Chinese law on the registered trademark without usingcancellation system, this essay compares the trademark law of three developed countries,namely France, Japan and Britain. What’s more, it specifically analyzes a series of practical problems like the definition of behaviors of using this system, procedures for regulations onproofs.The third parts mainly do the research on the special problems caused in the practice.Four problems will be probed in this part—whether the objective use behavior withoutsubjective meaning infringes upon the use of a trademark owner; whether the person intrademark infringement cases shall have the right to bring a cancellation request; whetherassociated trademarks and defense trademarks use the system without cancellation; Whetherthe trademark revocation shall be ordered to rectify the preceding procedure.The last part, combining with the parts as above, puts forward legislative suggestions toperfect this system, including ensuring the meaning of use in the regulation that trademarksare not used for successive three years, provides for regularly used of the trademarkregistrant’s proof obligation, adding the clause about proper reasons for not using this systemand perfect those contents about the allocation of the responsibility of proofs and thejudgment of proofs, thus put forward suggestions to improve China’s trademark legislation. |