Interpretation Of The System Of Malicious Trademark Application Not For The Purpose Of Use

In 2019,the Trademark Law was amended,and Article 4 added a new regulation system of "malicious registration without an intent of use".The promulgation of this Article aims to respond to the malicious registration of trademarks in China for the long term.However,due to the unclear legal provisions,there are many heated disputes about the purpose of establishing new provisions and related concepts.Therefore,the paper attempts to reasonably interpret the purpose of the regulation,the relationship with other systems,and the rule determination of the Article.Concerning the legislative intention of the new amendment of Article 4 of the Trademark Law,this Article can completely cover the trademark hoarding in trademark registration applications but fails to cover malicious preemption.This Article can regulate the malicious hoarding of trademarks and make up for the deficiency of the regulation of malicious hoarding of trademarks,thus constituting a relatively complete system of trademark hoarding.Therefore,the new amendment of Article 4 of the Trademark Law aims to regulate trademark hoarding.In terms of the relationship between the newly-amended Article 4 of Trademark Law and the regulation of the trademark preemption system,the former aims to prevent trademark hoarding,and the latter protects from the infringement of the individual interests before trademark rights.Both of them regulate the malicious registration of trademarks.Regarding the relationship between the newly amended Article 4 of the Trademark Law and the system of "revocating the trademark without being used for three years in a row",the former affects whether or not the registered trademark exists,and the latter regulates the continual existence of the registered trademark.Meanwhile,they apply in different stages.The former applies to the application,examination,objection,and invalidation stages of the application for a registered trademark,while the latter applies to registered trademarks that have not been used for three years in a row.As for the relationship between the newly-amended Article 4 of the Trademark Law and the system of obtaining registration by deception or other improper means,the former applies to all stages of a trademark,while the latter applies only to the procedure of invalidation.In application,if the former can be used for regulation,the latter will no longer be used.Concerning the rules for the determination of the newly-amended Article 4 of the Trademark Law,"without an intent of use" and "malice" are two independent elements of the type of "trademark registration application" in the newly-amended Article 4 of the Trademark Law.When determining "without an intent of use",we should consider more about the applicants’ behavior,such as number of trademark applications,transfer for profit,etc.,which can be used to determine the act "without an intent of use".When determining "malice",China can adopt a stricter standard of "possible malice".For a registration applicant who may have malice,the Trademark Office shall,within the scope of its discretion,require the registration applicant to provide materials to prove that the applicant is in good faith or has the intent to use it.In the meantime,the applicant suspected of malicious registration shall be required to provide materials indicating his or her intent.