The Application Of Article 4 Of The Trademark Law

Article 4,Paragraph 1,of the new Trademark Law,which came into effect on November 1,2019,adds: "An application for registration of a malicious trademark that is not intended for use shall be rejected." But because the trademark management authority,law enforcement agencies for the legislation of the law explanation of ambiguous,lead to academic disputes the scope of application of the new provisions have emerged,one party thinks that the terms and conditions only regulate trademark hoarding,and others who see the terms and conditions in addition to regulating the trademark hoarding,also regulate malicious registered behavior in general.Different understandings of the scope of application of Article 4 of the Trademark Law will affect the understanding of the whole regulation system of malicious squatting of the Trademark Law,as well as the certainty of law application in judicial practice.Therefore,after investigating the existing differences of views,this paper discusses the application scope and specific application methods of Article 4 of the trademark Law.Firstly,the author investigates the disputes existing in the application of article 4 of the trademark law.Through the investigation,a view that trademark hoarding is unique and excellent behavior in our country,deserve special revised draft regulation and legislative process shows that the "not for the purpose of using" shall be independent components,and from the perspective of the system of interpretation of the law of "malicious" and "not for the purpose of using" the dual structure of fact and value,not its segmentation.Therefore,in the application,the purpose of not using and malice should be identified as parallel and independent elements.On the other hand,from the perspective of the principle of good faith,this paper examines and analyzes the documents of trademark administration authorities and law enforcement authorities,so as to prove that the applicable requirement of this law is only malice,which can regulate the act of malicious squatting.The dilemma caused by the difference between the two viewpoints lies in whether the common practice of "free riders" and other behaviors can be regulated under Article 4,and whether the new law will make the provisions of other regulations on malicious squatting be affected or even ignored,and whether the trademarks that have been transferred can be regulated under this provision.Secondly,starting from the interpretation of the trademark system,the article 4’s scope of application is understood and analyzed,and the rationality of the view that the article 4’s scope of application should be limited to the hoarding behavior of trademarks is demonstrated.To article 4 of the trademark law,the applicable scope of understanding should be combined with the trademark is invalid for system,and based on the article 4 trademark invalid absolute reason attributes,from absolute is invalid for the regulation of the nature of "public interest",the difference between "malicious registered behavior" and "trademark hoarding" similarities and the differences of the former is to directly damage the interests of the private subject,while the latter is the direct damage to the public interest.Obviously,the trademark hoarding behavior is more consistent with the positioning of its absolute invalid cause.However,in view of the great difference between Article 4 and other causes of absolute invalidity in the content of regulations,it should not be included in the scope of application of this article.Meanwhile,the behaviors of malicious squatting can be divided into those of infringement of prior rights and interests,those of blocking others from entering the market and those of free-rider.The former has been comprehensively regulated by the existing laws,while the latter two types should not be included in the regulation scope of the trademark law.Therefore,generally malicious rush to register behavior should not be included in the scope of application of Article 4.This article applies only to some cases of trademark hoarding.Finally,this paper analyzes and expounds the specific application conditions of Article 4 and corresponding supporting systems.The application of the article must satisfy the conditions of "not for use purposes" and "maliciously",for which,although precise criteria cannot be drawn,the judgment should be based on whether the applicant exceeds the likelihood of its operation and whether it is "obvious".For the latter,the standard of "possible malice" should be adopted,but the burden of proof for the trademark registration applicant with possible malice should not be set too high,and the malice here should be made clear that it is the malice that directly infringes on the trademark management system,so as to distinguish it from the malice in the general malicious robbery.At the same time,in order to achieve the balance between article 4 and the protection of the interests of third parties in good faith,supporting systems such as credit list should be established.Finally,the main difference between Article 4 and Article 44 is whether the act of improper registration is "for the purpose of use".However,at the same time,it should be recognized that the introduction of Article 4 will inevitably lead to the continuous "squeeze" of the applicable space of Article 44,so it is not possible to escape to Article 44 just because an act cannot be regulated by Article 4.