| The main purpose of the fourth amendment to the Trademark Law is to further strengthen intellectual property protection,optimize the business environment and curb malicious trademark registration.Among the 6 articles involved in this revision,the supplement of the latter part of article 4 is an important improvement on the substantive content of trademark registration,aiming to solve practical problems,prevent malicious trademark registration applications without the purpose of use from the source,and make trademark application registration return to the origin.However,after more than two years of theoretical research and practical exploration,article 4has not formed stable and perfect conclusions and rules in terms of its own positioning,relations with other articles,applicable situations,judgment criteria and factors to be considered.In view of this situation,this paper discusses the purpose of the amendment of Article 4,analyzes the problems and causes of the determination of legal status and application in the authorization and confirmation of rights of“malicious trademark registration not for the purpose of use” clause,and puts forward the writer’s opinions and suggestions on the understanding and application of Article4 of the Trademark Law based on the legal provisions and practical experience of foreign regulations on malicious trademark squatting.This paper is based on the problem raising-analysis-solving as the main line,in addition to the Abstract and Introduction,there are three chapters,the full text of about 40,000 words.The first chapter introduces the significance and value of the amendment of Article 4.The number of malicious trademark applications without the purpose of use is huge,the situation is complex,and the consequences are serious.Article 4 aims to provide legal basis for curbing malicious trademark registration applications and reduce the difficulty of proof in practice.However,the application of article 4 in the confirmation of authorization inevitably encountered some problems,including unclear legal status,unclear relationship with other provisions,unclear scope of application,and imperfect judgment standards and considerations.The second chapter analyzes the above problems one by one.As for the legal status of the article 4 “malicious registration not for the purpose of use”,there are two requirements: “malicious” and “not for the purpose of use” in this clause.Among them,rules prohibiting malicious intent should be applied to all trademark applications,“malicious intent” is the main reason for the rejection of trademark application registration,and “not for the purpose of use” only plays a role as a modifier of “malicious intent”,then make the clause return to its legislative purpose and play its due effect.Then,clarify the relationship between article 4 “malicious registration not for the purpose of use” clause and other clauses prohibiting malicious registration,“other adverse effects” clause and “trademark withdrawal” clause,and correct the misuse,mixing and misunderstanding.As for the application of the article4 “malicious registration not for the purpose of use”,the scope of application of this article should be centered on trademark hoarding behavior,and include other malicious trademark registration behaviors,so as to highlight its dominant and declarative status and make up for the lack of restraining malicious trademark registration behavior in existing legal provisions.Finally,this paper provides the analysis and useful reference for the review of this article from three aspects:procedure optimization,selection of judgment criteria and improvement of consideration factors.The third chapter puts forward the author’s viewpoint and suggestion,specific include:makes clear the comprehensive position and function of article 4.As a declarative clause,it emphasizes the importance of trademark use and good faith;As a specific clause,it realizes the purpose of regulating trademark hoarding;As a cushion clause,it adjust other non-standard behavior.On this basis,article 4 should play a guiding role in other specific clauses,and maintain their relevance and independence.Specifically,it should be divided according to the number of prior right holders,attribute and type of the object of malicious registration under the framework composed of trademark hoarding behavior,repeated registration behavior and other malicious trademark registration behavior.As a specific provision,article 4 can not only regulate the hoarding of trademarks,but also exert a deterrent effect on other malicious registrations that disrupt the order of trademark registration.In the specific judgment,the examination organ can distinguish between general and special cases,decide whether to require the applicant to provide proof of the purpose of use.According to the objective judgment standard,then consider a variety of factors of the "enumeration + bottom" type.In order to make the fourth article play a better role,this paper adds some suggestions on perfecting the blacklist system of trademark registration and establishing the credit system of trademark agency. |
