Research On The Identification Of Intent To Use Trademark In China

Malicious registrations that lack the intent to use trademarks occur frequently,causing widespread concern.One of the key work contents of the Trademark Office of China in trademark protection in 2017 is to curb the malicious registration of trademarks.The application for registered trademarks for non-use purposes has led to an increase in the number of applications.In addition to causing the examination of the Trademark Office to be more arduous,it will also lead to disputes,initiate administrative confirmation and judicial procedures,and go through the first-instance,second-instance and even re-trial procedures,which will take a long time and that is a waste of administrative review resources and judicial resources that are scarce.The prohibition of trademark application for lack of intention to use has been practiced in China.On April 23,2019,the Tenth Session of the Standing Committee of the 13 th National People's Congress passed the revision of the Trademark Law,and the purpose of trademark application was clearly limited to use.However,for the determination of the intention to use the trademark,a unified standard system has not yet been formed in the judicial judgment.Regarding the relevant rules for the intent determination,the United States has developed a very mature system in the legal provisions and practices.Based on the meticulous generalization of its relevant rules,this paper combines China's related issues and institutional foundations to give practical suggestions for the identification of trademark use intent in China.Chapter I starts with the current practice of trademark use intention determination in China,mainly including the time of identification and the applicable law provisions,and summarizes the existing problems in practice,demonstrates the necessity of unifying the criteria and elements in the identification of trademark use intention,and the necessity of introducing the system of trademark use intention because of the difficulties in the application of existing trademark law provisions.In practice,there is a wide time range for the identification of intention to use.Before and after the trademark is registered,the existence of intention to use can be determined.When determining the intention of use,the applicable articles in practice are Article 4,Article 7 and Paragraph 1 of Article 44 of the Trademark Law.There are three main problems in the identification of trademark use intention in our country at present: 1.The criteria and elements for the identification of trademark use intention are not clear.There is no unified understanding of what criteria should be adopted to judge the intent to use,and the elements to be taken into account in identifying the intention of use have not yet formed a system.In the existing practice,the number of trademark applications is particularly important,but in addition,whether other factors should be taken into account,and what is the logic between them is not clear;2.There are still some unclear points about the burden of proof,the form and time of evidence,and so on when determining the intention of trademark use.How to distribute the burden of proof of parties,whether the form of evidence must be written,whether the evidence formed later than the application date can be accepted,and other evidentiary issues have not yet formed a standard;3.The applicable laws in determining the intention of use in China,including Article 4,Article 7,and Paragraph 1 of Article 44,are lack of specific applicable articles.The consequences of the violation or the dilemma of interpretation have also led to a series of divergences in practice.Therefore,it is necessary to discuss the above problems separately and give suggestions.Chapter II mainly analyses and summarizes the criteria and elements for identifying the intention of trademark use.There are various criteria for judging trademark use intention in judgments and scholar articles in our country.In view of the wider meaning of "bona fide" and the more in line with the original intention of setting the requirement of use intention,it is suggested to adopt the criterion of " bona fide ".When determining whether the applicant has bona fide intention to use the evidence,we should draw lessons from the overall objective evidence facts standard confirmed by American cases and take all factors into consideration.The main factors considered in identifying the intention of use are subjective and objective.Subjective factors include that the purpose of the applicant's application for trademark registration should be to use the trademark in accordance with the requirements of the Trademark Law in commercial activities,and not be limited to the purpose of holding trademark rights;the motive of the applicant's application must be legitimate,not for the purpose of selling,impeding competition,blackmail or climbing goodwill.The objective factors include whether the applicant has the relevant industry experience or business ability,whether the number of applications meets the needs of its business scale,the degree of association between the applied trademark and the previous trademark,and whether a clear business plan has been formulated.Chapter III mainly discusses the evidence-related issues in identifying the intention of trademark use,including the criteria for the distribution of the burden of proof of the parties,the form and the time of evidence.Because the procedure of using intention determination is initiated by the questioning party,it must provide some evidence to make the examiner doubt the applicant's using intention,and then the trademark applicant refutes the questioning.Because the evidence about the intention of trademark use is mostly under the applicant's cognitive scope and control,it is not conducive to the realization of fairness and justice if the burden of proof is too high for the questioning party,so the burden of proof of the questioning party should be reduced appropriately,but the burden of proof must not be accomplished only by questioning itself.Evidence in written form is beneficial to the proof of theapplicant's intention to use,but according to the connotation of the overall objective evidence standard,the lack of written evidence will not necessarily lead to the opposite result.Evidence formed after the application date may also be used as a basis for the existence of intent to use.Chapter IV mainly discusses the relevant legislation,examination and supporting provisions of trademark use intention.According to the existing provisions of trademark law in China,there are great difficulties in identifying the use intention and regulating the actors who lack the use intent.Therefore,this paper proposes to establish the requirement of intention of use in the trademark law.When applying for registration,the trademark applicant submits a declaration of intention of use together,and explicitly takes it as a legitimate reason to reject the application directly,raise objections,invalidate and revoke it.In order to ensure the effective implementation of the requirement of intent to use,on the basis of the existing trademark law,some supporting provisions should be added,such as requiring the applicant to submit a certificate of the actual use of the trademark within three years after registration,and increasing the legal liability of the applicant who lacks the intent to use the trademark.