Research On The Determination Of "bad Faith" In Bad Faith Registration Of Trademarks In My Country

In recent years,the number of trademark registration applications in China has always been ranked first in the world.With the increasing number of trademark applications,the competition for trademark resources has also increasingly intensified.At the same time,there is a high incidence of the trademark registration in bad faith.The act of malicious trademark registration is to attach others’ goodwill and register trademarks in batches for improper interests.The key to the identification of malicious trademark registration is to identify bad faith of the trademark registration applicant.The fourth revision of Trademark Law in 2019 aims to meet the needs of domestic students and promote the high-quality development of intellectual property rights.For this purpose,the legislative amendment stipulates the restraining and punishing measures for malicious trademark registration.However,the general provisions for malicious trademark registration are not stipulated in the amendment.In judicial practice,the court considers the identification of "bad faith" based on such factors as the similarity of the contested trademark,the popularity of the citing trademark,the act of infringing the prior right and trademark hoarding.The empirical analysis shows that the court lacks a uniform identification standard of determining bad faith in the trial.There are the following problems: first,the expression of the subjective intention is not specific;second,the judgment standard is not uniform;third,the time of determination is not consistent;fourth,the relationship between "bad faith" and improper means is not clear.The "bad faith" in trademark registration is derived from civil law,which requires the perpetrator to know the relevant facts.It cannot be regarded as malicious if the applicant does not know relevant facts of trademark.As the identification of bad faith is at the level of value,knowing is only a neutral judgment which cannot be completely equated with bad faith.It also requires a perverse motive and purpose of bad faith.The essential value of a trademark needs to be reflected by using.The more evidences can provide in good faith use,the less likely the applicant is in bad faith.There are two sides in trademark registrations in bad faith: subjective cognition and subjective intention.On the one hand,it makes a judgment on whether applicant knows or should know the subjective cognition,such as the contact between the two parties of the trademark in dispute,the conduct of the applicant after registration,the originality and popularity of the prior mark,the region or industry,etc.On the other hand,the judgment must be based on the applicant’s dishonest intention,such as clinging to the goodwill of others,blocking others from entering the market and seeking other improper interests,etc.