| Trademark registration in bad faith is a common and frequent problem under the implementation of trademark registration acquisition in China.Registered trademark malicious applicants use the principle of priority of prior application in China’s trademark legal system to seize profit-making behavior to the free market competition order caused great trouble.2019 China carried out the fourth amendment to the Trademark Law,which provides in the first paragraph of Article 4: "malicious trademark registration applications not for the purpose of use,shall be rejected." The new provision aims to solve the problem of abnormal trademark registration applications with bad motives of profit-making by hoarding trademarks in practice,and provides a practical legal basis for regulating malicious trademark registration acts that infringe on public interests.In line with the amendment of Article 4,the State Intellectual Property Office has successively issued supporting explanations and detailed regulations,but the following problems still exist: the object of regulation in Article 4 is controversial,the subjective determination standard is not clearly defined,the list of consideration factors and applicable circumstances is in conflict with the object of regulation;the burden of proof is not implemented in the opposition stage and the standard of proof is unclear,the relationship between the application date and the time of evidence formation is vague and the proof behavior is not clearly excluded The cost of trademark registration examination is low,and the disciplinary measures for malicious trademark registration are still incomplete in legislation and weak in punishment.The only way to optimize the trademark examination and trial process and deepen the reform of trademark registration facilitation is to give full play to the legislative value of Article 4 of the Trademark Law,clarify and refine the criteria and factors for determining the lack of use purpose,raise the requirements for proof of use in the trademark opposition stage,establish a blacklist of hoarding malicious trademark registration applications and increase the illegal cost of malicious applicants.Only by doing so can China’s trademark registration applications,while adhering to the mode of obtaining registration,return to the origin of the system based on trademark use,so that malicious trademark applicants have no opportunity to take advantage of it.In addition to the introduction and conclusion,the text is divided into four parts.In the first part,the development of the regulation of "not for the purpose of use" clause for trademarks in China.The legislative history,judicial practice and supporting normative documents of the new Article 4 of the Trademark Law are reviewed.From the current situation of registration applications,the phenomenon of malicious registrations based on the purpose of hoarding is becoming more and more serious,and the effective registration rate is decreasing day by day.Article 4 of the Trademark Law was amended on the basis that the application of "other improper means" in Article 44 of the Trademark Law cannot reflect the requirements of trademark use.The typical case in judicial practice is the "Begonia Case",in which a comparison of the three levels of court hearings showed that the introduction of Article 4 of the Trademark Law on the value of trademark use and the operability of the legal application in relation to Article 44(1),and the cautious attitude of subsequent judicial decisions on such practice accelerated the direct crackdown on the lack of use purpose through Article 4.The second part is the analysis of the dilemma of "not for the purpose of use" registration.The legislative significance of Article 4 of the Trademark Law is to regulate the registration of trademarks,strengthen the obligation to use trademarks,and combat the registration of trademarks in bad faith.There are still problems with the existing legal regulations: whether the object of Article 4 of the Trademark Law is the monopolization of trademark resources or malicious trademark registration infringing on public welfare,there are deviations in the consideration factors listed by different authorities,the priority is not clearly applied,and the provisions in the applicable circumstances are likely to blur the object of Article 4 and the malicious registration infringing on specific civil rights and interests;the burden of proof and the standard of proof for the petitioner who opposes on absolute grounds,and the standard of proof for the petitioner who opposes on absolute grounds.The burden of proof and the standard of proof of the applicant for opposition based on absolute cause are missing in the existing law,and related to that,there is also a legislative gap in the time requirement and form requirement of the use evidence of the trademark applicant,and the false use evidence of symbolic use is not considered;infringement of exclusive trademark rights and malicious trademark registration are two kinds of wrongful acts,and the criminal liability and administrative liability for infringement of exclusive trademark rights cannot be applied to infringement of public interest type malicious trademark registration,and malicious Trademark registration is characterized as a general violation and breach of trust,but the specific categories and operation of punishment are not stipulated.The third part is the inspiration for the determination of malicious trademark registration for non-use purposes in foreign countries.Purpose of use is a subjective state,which is essentially an honest commitment to one’s own application behavior.The truthfulness standard requires the applicant to guarantee that the applied trademark will be used for production and operation.However,the infringement of public interest type malicious trademark registration also includes the registration behavior with the purpose of using a large number of preemption to exclude competitors,with additional malicious intent to disturb the order of trademark registration management and destroy the order of free competition in the market,from the perspective of causing others to influence,the adoption of the good faith standard is more suitable to curb Article 4 malicious breeding;the opposition stage is the second ranking of the trademark examination and trial,and its functional value lies in the public The opposition stage is the second examination and examination of the trademark,and its functional value is the public supervision and private remedy before the right is granted,so the applicant should put forward higher requirements for proof of use.The applicant is required to have the proposed use or actual use,and the proof of formation time is earlier than or at the same time with the opposition request date,and the symbolic use which is in line with the representation of the form of use is excluded;both the United States and Japan are higher than China in terms of registration examination cost,and the United States imposes the crime of perjury for the serious situation of malicious trademark registration,and Japan imposes the crime of fraud.China’s registration fees are low,and there is no criminal penalty for malicious trademark registration,and compared with the United States and Japan,disciplinary measures need to be established.Part Ⅳ: Suggestions for improving the determination of "not for the purpose of use" malicious trademark registration in China.It should be clear that the object of regulation in Article 4 is malicious trademark registration that infringes on public welfare,insisting on the higher standard of "sincerity" combined with objective evidence to judge the subjective intention of the applicant,and the application and number of factors to be considered should be combined with the applicant’s situation.In the stage of trademark opposition,in order to prevent malicious opposition,the applicant should bear the responsibility of prima facie evidence,and the evidence requirement of the applicant should be raised to the level of proposed use or use,and symbolic use should be explicitly excluded.Administrative penalties and illegal economic costs should be increased in both aspects of the infringement of public interest type malicious trademark registration penalties,while speeding up the establishment of trademark application subject to breach of trust file,to supervise and guide the normal registration application behavior. |
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