Explanation Of The "Major Registration Not For The Purpose Of Use" Clause Of The Trademark Law

China adopts a trademark registration system to obtain trademark rights.Against this background,malicious registration phenomena such as trademark hoarding and trademark squatting are serious.In China 's Trademark Law,Article 4 adds “Applications for registration of malicious trademarks that are not intended for use should be given "Rejection",this article makes up for the inadequacy of the existing provisions of the Trademark Law to regulate the law of trademark hoarding.The existing trademark hoarding phenomenon mostly uses Article 44 "by other improper means" and Article 49 "withdraw three" System to regulate.Article 44 There are inadequate laws applicable to the regulation of hoarding by "other improper means".It is not appropriate to directly identify a batch of registered trademarks as "using other improper means" to obtain trademark registration,and the "withdrawal of three" clause is used for trademarks.The regulation of hoarding has resulted in a large number of situations where the "symbolic use" of trademarks has been avoided to avoid the cancellation of trademarks and there has been a mess that should have been cancelled to prevent the subsequent use or registration of trademarks.China 's “Trademark Law” regulates the system of illegal registration mainly divided into relative and absolute conditions for registered trademarks.The division of relative conditions focuses on protecting the prior rights of others and protecting private interests,while absolute conditions mainly protect the public interests of the society,and “ "The malicious registration not for the purpose of use" clause is an absolute condition for the regulation of illegal registration.It is a brand-new clause that emphasizes the use requirements in the registration process,which is different from the original relative conditions.Regarding malicious registration that is not intended to be used,Japan,the European Union and the United States have relevant practices for regulating trademark hoarding and trademark squatting.For the regulation of trademark hoarding,all countries have regulations on usage requirements or intentions,while The phenomenon of cybersquatting,focusing on the regulation of infringements on the prior rights of others,examining the“maliciousness” of the infringer,while countries do not consider the malicious subjective mental state of the applicant when exploring the actual use or intention of use of the trademark applicant.The "malicious" clause does not consider the applicant's use of the trademark,and there is no direct connection between "use" and "malicious".Drawing on the practices of the above countries on the malicious registration of trademarks,the article specifically interprets the "malicious registration not for the purpose of use" clause,which includes two constituent elements of "not for the purpose of use" and "malicious",which should be emphasized The “use” requirements of this clause should weaken the malicious conditions in the clauses to avoid destroying the original mechanism of trademark law to curb the malicious registration of trademarks,and the definition of use in the trademark registration process should be limited to the applicant 's use Inquiry of intent,to avoid fundamentally changing the system of registration and acquisition of trademark rights in China,and "malicious" should serve to prove that "not for the purpose of use",if the applicant cannot give a reasonable reason or basis for its non-use,It is "malicious."The increase in Article 4 of the Trademark Law and the infringement of the prior rights of others,the forty-four article "obtaining trademark registration by other improper means",and the forty-four article "withdrawal of three" clauses overlap,However,the increase in the terms should not destroy the original trademark law system and system structure,but should work together with theoriginal terms to regulate the malicious registration phenomenon and clarify the applicable boundary between them.The provisions of the Trademark Law infringing on the prior rights of others are mainly related to the protection of private interests,which regulates the phenomenon of squatting of trademarks,while the “malicious registration not for the purpose of use” clause focuses on protecting public interests and regulating the phenomenon of hoarding trademarks.After the emergence of new provisions in Article 4,Article 44 should no longer regulate the phenomenon of hoarding trademarks,which should become the bottom line clause governing the absolute conditions of illegal registration,while Article 49 "withdrawal of three" clauses mainly apply to trademarks Regulations on the actual use of trademarks in the post-registration phase are different from Article 4 which mainly applies to the trademark registration phase and regulates the intent to use trademarks.