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Interpretation Of The New Trademark Law: Improving The Accreditation Procedure To Stop Malicious Rush Registration

2013/11/22 22:56:00 31

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Trademark Law Trademark Review Malicious Rush Registration Commerce And Industry Bureau

< > the third revision of the trademark law has made some adjustments and improvements to the 3 basic objectives of facilitating the applicant's registered trademark, maintaining fair competition in the market order, and strengthening the protection of the exclusive right to trademark. It has made certain adjustments and improvements to the procedures of authorization and confirmation, including the trademark review procedure, increased the intensity of the fight against malicious spying, and stipulated the time limit for the trial of trademark authorization, which will make the trademark authorization work more scientific.

1. The trademark review procedure has been revised and improved .

procedure is not only a means to guarantee the realization of entity value, but also has its own independent value. Reasonable programming is essential for achieving fair and efficient authorization.

Therefore, this "a href=" http://www.91se91.com/news/index_p.asp "trademark law < /a > amendment has made certain adjustments and improvements to the existing trademark authorization and confirmation procedures, among which the following are related to trademark review.

(1) to amend the existing trademark dispute system to an invalid declaration system

this amendment is mainly aimed at the improvement of the trademark law which is not clear enough for the qualitative analysis of the trademark dispute system.

Trademark dispute is the registration of the Trademark Review Committee of the State Administration for Industry and Commerce (hereinafter referred to as the "business review board") by the Trademark Registration Committee of the State Administration for Industry and Commerce (hereinafter referred to as the "business jury").

The business Commission considers that the reason for cancellation is set up to cancel the ruling, and the registered trademark is invalid from the beginning.

The fifth chapter of the trademark law stipulates the trademark dispute system. The thirty-sixth provision of the trademark law stipulates the legal consequences of the cancellation of the trademark.

Because the existing trademark law has used several concepts, including disputes and revocation, to confuse the dispute system with the trademark management procedure.

There are some common points in the revocation of disputes and the cancellation of trademark management procedures. The objects are all registered trademarks that exist already, and all the trademark rights that have been registered are eliminated. The two can be made by the competent authorities of the Trademark Office in accordance with their functions or powers, or made according to the application of the people concerned. P

But in essence, the revocation of disputes and the revocation of trademark management procedures are different in terms of meaning, elements and legal consequences, which are mainly reflected in the following aspects:

1. the reasons for starting are different.

The trademark revoked in the dispute is due to the fact that the registration does not conform to the law, and the trademark revoked in the trademark management procedure is in conformity with the law when registered, and is cancelled because of its violation of the legal provisions in use.

2. the purpose of setting is different.

The setting up of disputes is an ex post remedial measure taken for the improper registration of the reasons for the existence of non registered reasons. The revocation of trademark management procedures is intended to regulate the use of trademarks.

3., the term is different.

In addition to malicious registration, disputes should be made within the statutory period of exclusion. The cancellation in the trademark management procedure will not be subject to the exclusion period except for the continuous use of trademarks.

4. is different in potency.

In a dispute procedure, the exclusive right of a trademark that is revoked is deemed to be nonexistent from the beginning; the trademark revoked in the trademark management procedure is only intended for the future, without retroactive effect, and the right to exclusive use of the trademark is lost when it is effective.

in view of this, the new trademark law, starting from the original intention of the trademark dispute system, clarifies the demarcation of the dispute revocation and trademark management procedures, revises the existing dispute system to "invalid declaration", and increases the legal consequences of the cancellation of registration of the reasons for the dispute in the trademark law implementation Ordinance to the trademark law as a legal consequence of the invalid a href= "http://www.91se91.com/news/index_z.asp" > registered trademark < /a >.

This amendment has restored the original nature of the trademark dispute system and made the distinction between different types of cases clearer.

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(two) further clarified the effective way and date of trademark review decision and ruling .

the effective date of the decision and ruling of the Trademark Office and the business jury is crucial for determining the status of trademark rights.

According to the forty-fourth provision of the administrative procedural law, the execution of specific administrative acts shall not be suspended during the proceedings.

This provision is based on the nature of administrative action which is binding and binding.

Because the Trademark Review Award not only directly determines the rights state of the trademark involved, but also has a direct impact on the quasi refutation of other trademarks. If the award is put into execution during the litigation period, the result of the litigation changes the outcome of the award, which will bring a lot of inconvenience to a series of subsequent procedures.

In view of this, the thirty-fourth provision of the existing trademark law stipulates: "the parties shall not apply for a review within the statutory time limit for the ruling made by the Trademark Office, or the ruling made by the Trademark Review and Adjudication Board shall not bring a lawsuit to the people's court, and the ruling shall take effect."

It can be seen from this stipulation that in case of litigation, the trademark adjudication award is actually effective only after the litigation ends.

In the practice of evaluation, the judges of the Commercial Commission will be put into execution before the time of prosecution.

the existing trademark law only stipulates the effective way of objection and objection reexamination ruling in the thirty-fourth paragraph of the first paragraph. It is not clear enough for the other decisions and rulings to take effect. This provision is obviously not comprehensive enough, and it is easy to dispute on execution.

According to the provisions of the thirty-sixth, forty-sixth and fifty-fifth articles of the new trademark law, when the statutory period expires, the parties concerned do not apply for a review of the decision of the Trademark Office, the decision to cancel the registration, the invalidation of the registered trademark, or the decision to cancel the registered trademark, or to file a lawsuit against the decision of the business jury, the maintenance of a registered trademark or the ruling of invalidation of the registered trademark. The decision of the trademark office or the decision and ruling of the business jury shall be effective.

This amendment explicitly incorporated the other decisions and rulings into effect, and further clarified the effective time of the expiration of the statutory period, so that the assessors and the parties could make accurate judgments on the status of the trademark involved.

(three) increased the time limit for Adjudication Cases and the suspension of trial /p >

< > thirty-fourth, thirty-fifth, forty-fourth, forty-fifth and fifty-fourth of the new trademark law respectively stipulate the time limit for different kinds of evaluation cases, which is of positive significance for shortening the time of case trials and improving the efficiency of trademark authorization, and at the same time, brings new challenges to trademark review.

what needs to be pointed out is that the request for invalidation made by the parties prescribed in the forty-fourth and third paragraphs of the new trademark law is the case of both parties. The fifty-fourth Party's review of the trademark in the case of the Trademark Office's decision to revoke the decision has been revoked for 3 years without use and degradation as a general name. It is also a case for both parties. The two types of assessment cases have stipulated 9 months' basic trial limit and 3 months' extension of the trial limit, which is consistent with the single party's case trial limit, which obviously sets a higher requirement for the time limit of the judges.

In order to meet the requirements of the new trademark law, the Business Review Committee has taken active measures, including adjusting the existing working time limits stipulated in the current trademark law, optimizing workflow, upgrading and improving the computer system.

in the case of setting up a trial limit for the evaluation case, in order to solve the problem of delayed trial in the practice due to the uncertainty of the prior right status, the forty-fifth provision of the new trademark law stipulates: "in the process of examining the request for invalidation according to the provisions of the preceding paragraph, the Trademark Review and Adjudication Board shall determine the prior rights determined by the people's court hearing or the result of another case being processed by the administrative organ, and may suspend the examination.

After the cancellation of the cause, the examination procedure shall be resumed. "

This provision takes into account the actual needs of case trials, and is also conducive to the protection of the interests of the parties involved in the review.

However, the new trademark law stipulates the suspension procedure only in the two cases of no registration review and invalidation declaration, and no corresponding provisions are made for the case of dismissal of the review case, which is about 70% of the appraisal case.

In order to better protect the legitimate rights and interests of the parties and maintain the smooth operation of the authorization right order, it is necessary to further clarify this issue in the revision of the Trademark Law Implementation Regulations.

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in addition, in the process of reviewing the case, the prior rights which affect the smooth proceeding of the confirmation procedure include the patent right of design, copyright, etc., but the most common one is the prior trademark right.

Therefore, the "prior rights" mentioned in the law relating to the suspension shall include trademark rights. However, in the first half of the thirty-second part of the new trademark law, "the application of trademark registration shall not prejudice the prior rights of others". Considering the connection between the original intention of the law and the provisions of the law, the "prior rights" generally do not understand the original trademark rights.

Therefore, whether the scope of the "prior rights" in the suspension clause should be consistent with the scope of the "prior rights" in the thirty-second article is a problem that needs to be solved in practice in the future.

two, increasing the intensity of attacking malicious spying, /p >

in the trial practice of trademark review cases, due to the lack of legal provisions, some improper registration activities are not effectively regulated.

The revision of the trademark law has actively responded to the hot issues of social concern and intensified the crackdown on malicious rush taking.

(1) the principle of good faith shall be written into the trademark law .

the principle of good faith is a basic principle that civil subjects should follow in carrying out civil activities. Trademark registration and use activities are no exception, but this principle is not clearly stipulated in the existing trademark law.

The revision of the trademark law, in response to the appeal of all sectors of society, especially experts and scholars, has increased the "application for registration and use of trademarks in the general provisions (seventh, paragraph 1), and shall abide by the principle of good faith".

As a provision in the general provisions, although this clause can not be directly invoked as an entity basis in handling trademark confirmation cases, it can still play the role of guiding the trademark parties to be honest, trustworthy, and correctly register and use trademarks.

In the case trial, the trademark confirmation authority can also correctly grasp the legislative intent of the specific law and reasonably determine the trial standard based on this principle.

(two) increased the requirement to stop the registration of trademark by a specific relationship. /p >

the fifteenth article of the existing trademark law prohibits agents and representatives from grabbing the trademarks of the agents and their representatives. This provision has played an important role in stopping the illegal acts of knowing other people's trademarks and taking advantage of their agents by proxy and representative relations.

In the practice of trademark confirmation cases, from the purpose of safeguarding the principle of good faith, the trademark authority has made a broader explanation of the meaning of "agent" and "representative", covering agents and representatives in the sense of sales agency relationship.

However, in practice, there are still some cases of rush registration by knowing business partner's trademarks through business contacts, such as investment relations, licensing processing, general business contacts and so on.

These situations clearly violate the principles of integrity and business ethics, but it is difficult to stop them through the fifteenth.

in order to bring the above illegal registration into the scope of adjustment, the new trademark law has added second items to the fifteenth article: "the trademark that applies for registration of the same commodity or similar commodity is identical or similar to that of the unregistered trademark previously used by another person. If the applicant has any other contract or business relationship or other relationship with the other person's other than the preceding clause, and the other person knows the existence of the trademark, he shall not register."

This provision can make up for the deficiency of the existing trademark law to a certain extent.

According to the general understanding, "contracts, business contacts or other relationships" should be {page_break} .

that should be enough to cover the relationship between agents or representatives. However, because the provisions on stopping the agents or representatives' registration are derived from the Paris convention, in order to embody the specific requirements of the trademark law for fulfilling the obligations of the international convention, the fifteenth provisions of the existing Trademark Law are retained in writing, and the newly added regulations are used as the second paragraph.

there is still some doubt about the understanding of "first use" and "other relationships" in the fifteenth newly added second sections.

According to the principle of regionalism of < a href= "http://www.91se91.com/news/index_h.asp > > trademark > /a >, if there is no special provision, the" use "stipulated in the trademark law should refer to the use in the mainland of China.

In accordance with the standards of trial, the trademarks of agents and representatives in the fifteenth paragraph 1 are not limited to the use of Chinese mainland.

With the use of geographical restrictions, the application of the fifteenth second elements is much smaller than that of the first paragraph.

In addition, whether the "other relationship" should be identical with the nature of the contract or business paction enumerated in the fifteenth articles, or generally refers to the objective relationship between the parties, remains to be clarified.

The legislative purpose of adding fifteenth articles and second sections to the new trademark law is to determine the key to its application scope.

At present, there are two angles to interpret the legislative purpose of the clause.

The first angle is to use the clause as a protection clause for unregistered trademarks, which is believed to extend the scope of protection for unregistered trademarks.

Under the premise of the registration principle of trademark acquisition in China, the protection of unregistered trademarks needs a considerable "threshold". The trademark used before must have certain "sign" attribute before it can have the interests that can be protected by law.

The first paragraph of the thirteenth article of the current trademark law protects the protection of unregistered well-known trademarks and the protection of trademarks that have been used in the first half of the thirty-first half.

Of course, the current practice of "having certain effect" on the thirty-first half of the current trademark law is carried out in conjunction with the "improper means" required by the article. Under the circumstances of "improper means", the requirement of "having a certain effect" has been greatly reduced.

Another Interpretation of the fifteenth articles and second items added to the new trademark law is based on the requirements of the principle of honesty and credit.

In the note of the State Council's amendment to the trademark law, which was submitted by the State Council to the Standing Committee of the National People's Congress, it was amended as a "market order to maintain fair competition".

From the style arrangement of the new trademark law, this paragraph is in line with the existing fifteenth conditions of the trademark law in the same law, and has used the term "beyond the provisions of the preceding paragraph", which indicates that this clause is quite similar to that of the agent and representative listed in the first paragraph.

the author thinks that after the implementation of the new trademark law, the application of the fifteenth second sections should start from the reality of the trademark right in China, and seek a balance between the above two interpretations.

In addition, the amendment did not change the provisions of the existing trademark law to stop improper registration. How to add fifteenth new second paragraphs to the first paragraph, the first paragraph of the thirteenth paragraph and the second half of the thirty-first paragraph should also be considered when determining the standard of trial.