A Study On The Restriction Of The Rights Of Registered Trademarks Not Used For Three Consecutive Years

China's current system of restriction of registered trademark rights that has not been used for three consecutive years has both legislative limitations and judicial loopholes.These problems are manifested in the high operating cost of the system,the imbalance between the interests of related parties,and the violation of the principle of fairness.In judicial practice,there have also been a problem of differences in the determination of trademark infringement.A theoretical discuss of the right restriction system reveals that the system is legally established because the object of trademark right has the public attribute of symbol resources,and the basis of complete relief of trademark right is that the trademark is actually used.This system is also a reference to the theory of invalidation of rights to a certain extent,and it is a response to the inherent shortcomings of the system for obtaining the registration of trademark rights.The system of restricting the rights of registered trademarks that have not been used for three consecutive years is also a response to the theory of public-private partnership regulation in a certain extent.Restricting unused registered trademark rights for three consecutive years should follow the “internal restriction” principle and the principle of proportionality.The right restriction system was affected by the over-property of trademark rights during the evolution process.Different trademark use standards appeared between trademark revocation procedures and trademark infringement proceedings.The low judicial utilization rate of competition policy tools also has a certain influence on the formation of the status quo of the system.In China's academic circles,some scholars have put forward suggestions to establish the fact that registered trademarks are not actually used as a reason to prevent the establishment of trademark infringement.This is legally worthy of recognition.Innovative incentive mechanism has been caused negative effects by unused trademark's owner's behavior,and it is reasonable to incorporate this “damage” into the judgment of illegality of trademark infringement.However,the consequences of the implementation of this recommendation will allow the trademark that the registration has been maintained and the sued mark enter a state of coexistence,which will cause additional market monopoly issues and lack of system stability expectations.This is the consequence of adopting the standard of intention use.The improvement of the system of restricting the rights of registered trademarks that have not been used for three consecutive years is a systematic project,which should take into account the coordination between the systems and improve the efficiency of the system.In relevant extraterritorial legislative experience,the “EU Trademark Regulations”,the German and French trademark legal systems have logically strict restrictions on the rights of unused registered trademarks.The legislation on the revocation of unused registered trademarks is worthy of reference for our country.In addition,the compulsory provisions on the use of trademarks in the US Trademark Law can also be used for reference to improve China's right restriction system.Therefore,on the basis of affirming the establishment of a defense reason that prevents the establishment of trademark infringement,the actual use standards should be expanded,the grace period of use should be extended to five years,and the calculation of the continuous use period of trademarks should be standardized.And we also need to create conditions in trademark legislation to allow people's courts to revoke unused trademarks.At the same time,the administrative procedures for the revocation of unused trademarks shall be subject to formal review,and the restrictions on registration applications after such trademark revocation shall be removed,which can improve the efficiency of redistributing trademark resources.