Research On The Identification Of Malicious Preemptive Registration Of Trademarks

Malicious trademark registration has been a problem in the field of intellectual property in China for many years.Although China has basically established a legal system to regulate this behavior,malicious trademark registration events are still emerging one after another.The author believes that the main reason for the repeated prohibition of this trademark anomaly is that the identification standards of malicious registration of trademarks in China are not clear and unified,and the standards adopted to identify this behavior in judicial practice are often inconsistent.In order to effectively regulate the malicious registration of trademarks,we first need to clarify the identification standard of the behavior,prevent the "fish out of the net" with strict identification standard,and then punish the behavior that meets the standard.The identification rules of malicious registration of trademarks are mainly stipulated in Article 32 of China’s trademark law.The author will split and study the constituent elements of this article one by one,and summarize some general standards for identifying malicious registration of trademarks in combination with legislative and judicial experience and academic views at home and abroad,in order to make a modest contribution to improving the identification system of malicious registration of trademarks in China.This paper is divided into five parts.The first part is an overview of the basic problems of trademark malicious preemption.Firstly,this paper introduces the different definitions of the concept of malicious trademark registration in academia,and then expounds the current situation,causes and harm of this behavior.The second part studies the identification of the object of malicious registration from the perspective of Article 32 of China’s trademark law.The second half sentence of Article 32 of the trademark law is the most explicit provision of China’s law on regulating malicious trademark registration in a narrow sense.In this part,the article of the law is literally disassembled into the limiting factors of "prior use" and "certain influence",and the academic views and typical cases related to these factors are analyzed and studied,It also evaluates the provisions of China’s laws on the object of malicious cybersquatting.The third part is about the identification of "malice" in trademark cybersquatting."Malice" is a crucial condition in judging trademark cybersquatting behavior.Therefore,this part starts with the meaning of malice,then discusses the relationship between malice and improper means,and then discusses the three important factors often used to consider "malice" in trademark cybersquatting in judicial practice,Finally,it evaluates and analyzes the identification provisions of "malicious" in China’s law on malicious rush registration of trademarks.The fourth part is the research on comparative law.The research object is the relevant provisions and judicial practice of trademark malicious preemption in the United States and the European Union.Firstly,it introduces the rules of "true intention use" and "possibility of misleading trademark" in the United States,secondly introduces the identification of malicious cybersquatting in relevant EU legal documents and judicial practice,and finally summarizes the reference significance of foreign malicious cybersquatting identification standards to our country.The fifth part puts forward some suggestions on the basis of the previous research results.The author believes that the improvement of the identification system of malicious registration of trademarks in the future should be carried out from two aspects.The first aspect is the path to improve the identification standard of this behavior;The second aspect is to improve the specific identification standards of the act.