| To further improve the business environment in the Chinese market and combat the malicious registration of trademarks,the revised the Trademark Law in 2019 added a new item of absolute prohibition of trademark registration in the Article 4,that is,"a bad faith application for trademark registration for a purpose other than use shall be rejected".However,in view of enterprises applying for trademark registration for defensive purposes,in the Trademark Examination and Trial Guide issued in 2021,the defensive registration of trademarks is stipulated as an exception to the application of Article 4 of the Trademark Law.Defensive trademark registration mainly refers to the trademark registrant’s registration of the same trademark as the basic trademark on designated goods or services other than the main business,in order to prevent others from clinging to or defacing the goodwill carried on the basic trademark.Trademark defensive registration is a common layout used by Chinese enterprises as a preventive measure in advance of trademark infringement.However,due to the lack of corresponding systems to restrain them,the phenomenon of anomie of defensive trademark registration is common.In addition,the provisions on the defensive registration of trademarks in the Guidelines for Trademark Examination and Trial are not perfect,and it is difficult to solve the problems of defensive trademark registration in practice.By searching trademark defensive registration of enterprises and analyzing relevant administrative and judicial cases,it is found that there are following problems in trademark defensive registration:There is a serious anomie for enterprises to carry out all kinds of registration and even defensive registration for reserved trademarks;Due to the conflict between defensive trademarks and the "The trademark non-use revocation system",it is difficult for enterprises to achieve their defensive purposes;Under "The trademark non-use revocation system",the maintenance of the effectiveness of defensive trademarks is blocked,which is inconsistent with the purpose of enterprises to maintain defensive trademarks,resulting in repeated defensive registration of trademarks,and serious waste of administrative and judicial resources in reciprocating process.For enterprises,defensive registration of trademarks and the maintenance of defensive trademarks also cost a lot.But due to the defects in China’s trademark law system,enterprises are forced to carry out trademark defense.First of all,under system of trademark acquisition through registration in China,it is difficult to effectively curb malicious registration of trademarks;Secondly,the protection mechanism constructed by the Trademark Law for well-known trademarks or trademarks with certain influence is not perfect,which leads to the failure of those owners to obtain protection when dealing with trademark infringement.In addition,the provisions of current Trademark Law on defensive registration of trademarks have great flaws.On the one hand,there are no corresponding registration conditions;On the other hand,it failed to solve the contradiction with the "The trademark non-use revocation system".As a result,defensive trademark registration are characterized by wide registration scope and many repetitions.Considering the practical problems of trademark defensive registration,it is necessary to build a defensive trademark system in China.The reasons are as follows:for the strict registration conditions of defensive trademark system,it can effectively regulate defensive registration of trademarks.And for the stable exertion of the right to prevent trademark prohibition,it can effectively prevent trademark infringement in advance,not only strengthen the protection of well-known trademarks or trademarks with certain influence,but also effectively prevent others from malicious rush registration of basic trademarks;Due to the effectiveness of defensive trademarks is not affected by "The trademark non-use revocation system",it can both solve trademark defensive registration and prevent malicious "revoke",and further strengthen the regulation of malicious registration of trademarks.The defensive trademark system includes:First,the basic trademark should be the well-known trademarks,or the trademarks with certain influence,"Has a certain influence",should be identified as "within a certain range in China,known to the relevant public".The defensive trademark should be consistent with the basic trademark logo,and the scope of the registrable defensive trademark should be the same as the scope of the basic trademark’s prohibition right.Secondly,establish exercise rules of the right to prohibit defensive trademarks.The right to prohibit defensive trademarks is only to prevent others from registering the same or similar trademarks on the same goods or services.Finally,the effectiveness of defensive trademarks is affected by the popularity of basic trademarks,but not by "The trademark non-use revocation system". |
