Study On The Regulation Of Registration In Bad Faith And Without Intention To Use Of Trademark

On April 23,2019,the 13 th National People’s Congress passed a decision on amending the Trademark Law,in which Article 4,paragraph 1 of the Trademark Law added the clause of The application for trademark registration that is malicious and not filed for the purpose of use shall be refused,the amendment establishes malicious registration of trademarks and not filed for the purpose of use as one of the absolute reasons for refusal of registration and declaration of invalidation.Incorporating the clause of "intent to use" into the Trademark Law is to summarize and improve the practical experience of trademarks,also an innovative attempt by the applicant to put the trademark into practical use.The introduction part of the article proposes the establishment background and unique value of the "intent to use" clause in the context of the new trademark law,but there are still many difficulties in regulating malicious registration without the intention of use,which leads to the actual application effect.Then,the research value and significance of the article are expounded,and the related content of the article is reviewed.Finally,the main research methods,the structure of the paper and the main innovations and deficiencies of the paper are introduced.The body of the article consists of three chapters,as follows:The first chapter expounds the normative status and deficiencies of bad faith registration of trademarks without intention to use.It is pointed out that trademark registration without use intention cannot be equal to bad faith registration,and trademark registration without use intention mainly refers to hoarding registration,which is one of the special types of bad faith registration.The amendment of Article 4,Paragraph 1 has a strong practical basis and is a response to trademark practice.This article is mainly used to prevent trademark hoarding malicious registrations,other types of malicious registrations,and defensive registrations that do not belong to its scope of application.The "intent to use" clause provides a clear legal basis for curbing the hoarding registration of trademarks,realizes post-event supervision while managing the source,and further improves the malicious registration regulation system of the trademark law,reflecting the progress.On the other hand,the "intent to use" clause also has shortcomings,including the vagueness of the nature of the clause,the lack of objective criteria for the determination of the elements,and the conflict of effectiveness.After the establishment of the "intent to use" clause,the long-standing defensive trademarks in practice have become more difficult to review and manage due to the lack of clear system design and normative procedures,and there is also the risk of being abused.The second chapter conducts a legal analysis and a comparative study on the regulation of malicious registration of trademarks without intention to use.After the establishment of the "intent to use" clause,the malicious registration regulation system of my country’s Trademark Law has been further systematized.This clause is mainly aimed at trademark hoarding registrations that do not have the purpose of use,while malicious registrations that abuse rights and damage the legitimate interests of others belong to good faith.Principled bad faith registration shall be governed by specific provisions such as Article 15 and Article 32 of the Trademark Law,and malicious registration acts that disrupt the order of trademark registration and have unfair competition shall be regulated by Article 44 of the Trademark Law.Malicious registration without intention to use stems from the neglect of trademark use obligations in trademark legislation.The establishment of the "intent to use" clause makes the system of obtaining trademark registration return to its original intention,strengthens the obligation to use trademarks,and protects the limited public resources of trademarks.In addition,negative evaluation of bad faith registrations with no intention of use does not violate obligations under relevant international treaties.The legislative provisions and practical experience of foreign countries such as the United Kingdom,the United States,Japan and South Korea on the intention to use a trademark can be used for reference,such as the rules of proof of the intention to use a trademark,and the rules that require registration applicants to provide a declaration of intention to use,but they cannot be fully used for reference.The clear legislation on defensive trademarks in Japan and my country’s Hong Kong region has an enlightening effect on clarifying the institutional value of defensive trademarks and building a trademark defensive registration system in line with my country’s actual situation.The third chapter puts forward feasible suggestions for perfecting the regulation system of malicious registration of trademarks without intention of use.First,at the legislative level,the obligation to use trademarks should be strengthened.In the relevant provisions of the Trademark Law,the requirements of the obligation to use trademarks are clearly emphasized,and at the same time,the establishment of a filing system for the use of trademarks will help to achieve all-round supervision of hoarding malicious registrations.Secondly,at the level of system coordination,The clause does not conflict with the defensive registration of a trademark.The two are different in nature,purpose and possibility of actually using the trademark.It is a more coordinated and reasonable approach to build a defensive trademark registration system that is generally registered and then recognized as well-known after use,and can be exempted from use and revocation based on the defensive nature of the trademark,which can effectively prevent the defensive trademark system from being abused as trademark hoarding tools to make full use of trademark resources.Finally,at the level of legal application,the two elements of "purpose of use" and "bad faith" in the clause must be satisfied at the same time.When making a judgment,multiple judgment factors should be comprehensively considered,and the element of "purpose of use" should be identified first,and the application should be presumed accordingly.The subjective malicious situation of people.In addition,it is necessary to clarify the application relationship between the "intent to use" clause and Article 49,the latter mainly playing the role of ex post supervision.The conclusion part summarizes the research questions and main viewpoints of the full text.