On The Retrospective Power Of Exclusive Right Of Registered Trademarks

The Trademark Law of 2001 stipulates that a trademark registration certificate shall be issued for a trademark approved for registration and a notice shall be issued, and the exclusive right to use the trademark shall be calculated from the date of the approval and registration of the trademark office.

Among them, the time that the applicant for trademark registration obtains the exclusive right to use the trademark shall be counted from the date of the expiration of the three month of the preliminary notice.

However, in practice, the day when a trademark is allowed to be registered and the date of expiration of the trade mark announcement may not be the same day. This raises a question: is it traceability for the same or similar marks on the same or similar commodities from the date of the announcement of the trademark registration to the registration of the same trademark? In other words, whether others need to bear some form of legal liability? In 2001, the trademark law did not give the answer.

The thirty-sixth article of the new trademark law, which came into effect on May 1, 2014, gives a clear negative answer to this question. The second paragraph provides that "the trademark which is allowed to register after the objection is not established, and the time that the applicant for trademark registration obtains the exclusive right to use the trademark shall be counted from the date of the expiration of the three month of the preliminary examination announcement."

From the date of expiry of the notice of the trademark to the time when the registration decision is made, the act of using the same or similar mark on the same or similar commodity is not traceability; however, compensation shall be made for the loss caused by the maliciously used user's trademark registrant.

Trademark right is a kind of absolute right and right to the world, and the right person can exclude anyone else's trademark infringement.

However, there is a prerequisite for absolute power, that is, the state of rights must be known to others in a certain way.

For intellectual property rights, in addition to the creation of copyright automatically from the creation of works, it is usually necessary to pass statutory authorization procedures and inform the public.

If an absolute right is not known to the public, it will not be able to fight against others objectively.

It is based on the need for publicity, trademark law has set up a trademark notice system.

After the trademark announcement, it is presumed that anyone should know the existence of the trademark right, which is the basis for condemning the subjective state of the infringer.

Therefore, although the trademark owner obtains the right to exclusive use of the trademark from the date of the first three months' notice, he must obtain the right to investigate the tort liability of others.

Only after the announcement of the registered trademark, the exclusive right of the registered trademark can be pformed from the formal to the absolute right and the right to the world.

For example, Zhang San applied for registration of sporting goods on the sporting goods. After preliminary verification, the notice was announced. The initial announcement time was February 1, 2014. No one raised any objection during the announcement period.

The time when the Trademark Office approves the registration and announcements is May 1, 2014, then the time for obtaining the right to exclusive use of the trademark is three in February 1, 2014. However, if it is used for the use of X or similar trademarks in sporting goods or similar commodities, Zhang three wishes to defer the right to be postponed to May 1, 2014. For the similar acts during February 1, 2014 to May 1st, Zhang San's principle of exclusive right to use registered trademarks has no retrospective effect.

It is worth noting that the above provisions on retroactive force are principled, and for new cases of malicious and loss of trademark owners.

"Stipulates the exception in principle, that is," during the period from the date of expiry of the trademark notice to the pre registration decision, "compensation shall be made for the loss caused by the maliciously registered trademark of the user.

This reflects the meticulous and meticulous legislation in the new trademark law.

Then, how should we identify the malice? The author will illustrate the two cases in practice.

The first case is that two or more enterprises in a commodity or service industry use a similar or similar trademark or brand name for a long time. After a certain period of time, one of them will apply for registration of the trademark or brand as a trademark.

For the same or similar trademarks which have been publicly and continuously used before the application for registration of a trademark, it is obvious to the trademark.

There is no "malice".

The use of a trademark prior to the registration and approval shall not be traced back to the exclusive right of the registered trademark and bear the corresponding legal liability.

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The second case is that when a competition exists in a certain commodity or service industry, when someone notices that someone else has applied for registration of a trademark during the trademark verification notice, he will use the same or similar trademark quickly on the related commodities for the purpose of malicious competition (such as grabbing the market, distorting the commodity link, causing reverse confusion or taking the goodwill, etc.). This undoubtedly belongs to the "malicious" stipulated in the thirty-sixth article of the new trademark law, and should bear the corresponding liability for compensation.