Research On The Relief Of Trademark Nickname Preemptive Registration

In recent years,there were many trademark nickname preemption registration cases occurred in China,because of its own particularity,different views on the application of the Trademark Law triggering heated discussions among theorists and practitioners.As far as it goes,many of the basic theoretical issues of trademark nickname have not yet been clarified,and the legal regulation of malicious trademark nickname preemption registration has not been uniformed.The theoretical study of trademark nickname preemption registration is still in its infancy.This article analyzes the characteristics and essence of trademark nickname from its origin and the relationship with the original trademark,and reviews the serious consequences caused by the malicious preemptive registration,also the meaning that should be regulated.“Trademark Nickname” is not a concept in trademark law,which is used in judicial practices as a way of summarizing the use of consumers and news media as the basis for the public's use.It is derived from trademarks,company names,products,etc.,used to refer to the specific goods or services of others.This article first defines the concept of Trademark Nickname as: the public's use of the original trademark right holder's trademark,company name,product,etc.to refer to the identity of the original trademark owner's specific goods or services.From the perspective of the method and expression of trademark nickname,this article divides trademark nickname into three categories: firstly,originated from the original trademark;secondly,derived from the name of the company,commonly,the abbreviation;thirdly from the product itself,such as the description of the product packaging and decoration.This article focuses on the one originating from the original trademark,further analyzes the relationship between trademark nickname and the original trademark,and deeply understands the characteristics of trademark nickname.From the existing judicial cases,comparing the different attitudes towards trademark nickname preemptive registration of Trademark Office,the Trademark Review Committee and Courts,conclude that the absence of ownership and the legal regulation path resulting in the controversy of trademark nickname legal application.The "negative impact" clause is a general rule that violates the ordinal and vulgar customs of cultural information conveyed by trademark signs and passions,which should be applied in controversial acts that the nature is far-reaching,limited to "harmful to socialist moral hazard".The destruction of the market competition order caused by the confusion of the third party's application for registration of trademark nickname,though not a issue of private interests,is not destructive enough to be regulated by general provisions.“Malicious preemption registration” provision can not cross whether the use of public constitutes the use of trademark owner.Well-known trademark provision apply only the original trademark is registered well-known trademark,nickname known as copying,translation,imitation of well-known trademark.As to well-known product-specific names,on the one hand,there are difficulties in the determination,on the other hand,there are also obstacles referring to the prior use.The “objective association rule” is also immature.The trademark nickname preemption registration is determined from three aspects: the trademark nickname needs to be actually used to indicate the role of the source of goods or services is a prerequisite;secondly,the trademark nickname is commonly known as “having a certain influence”,and its influence is closely related.The specific judgment is based on the “unfair means” standard in the Standard for Review and Trial of Trademarks.The unfairness of the trademark nickname preemption registration is mainly manifested in the destruction of the competitive order and the use of consumers' cognitive fraudulent consumers and harming theinterests of consumers.This part focuses on United States trademark registration administrative procedures and judicial procedures practices,mainly case studies on its trademark nickname preemptive registration.TTAB seldom recognizes directly that even if a company itself does not utilize the nickname,but if the public has made a stable connection with the company through their use of the nickname,the company hereby identifies the right to be protected.The courts developed a more systematic “public use rule”,from which the original trademark owner can directly claim their rights and resist the registration of others according to the use of the public.As regards the regulation of our country's trademark nickname preemption registration,this article holds that the existing trademark law is incapable of regulating the common trademark nickname preemption as to those has not been used by the original trademark owner and related parties,also not similar to the original trademark.However it can be incorporated into Article 10(7)of the Trademark Law,expanded in the corresponding section of the Guidelines for Review and Trial of Trademarks,and adds "Trademarks consist of others' trademark nicknames,which easily lead to the public's misrecognition of the origin of goods or services" also cannot be used as trademarks.This should be a general rule prohibiting trademark nicknames from being maliciously registered.When a trademark nickname is similar to or copied,aperied or translated from an original trade mark,similar trademark terms and well-known trademark terms can also be used as choices for regulating trademark nickname preemption registration.