Research On The Registered Trademark Revocation System

Registered trademark revocation system is a common system in Trademark Law in all countries, the value of which is to activate the unused trademarks, promote the real use of the trademarks and the market competition. This paper begin with the development of the registered trademark revocation system, introduce the developments both domestic and abroad, and then deeply analyzed on the theoretical basis of the registered trademark revocation system. The revocation reasons are always the core of the revocation system, follow the theoretical basis analysis,based on the latest legislative achievements and judicial cases, the author draw a systematic analysis on the revocation reasons of the registered trademark, and then analysis the problems of the procedure of the registered trademark revocation system. This paper finally put forward the ideas and suggestions to perfect the registered trademark revocation system both on substance and procedure. Apart the preface and conclusion, this paper is divided into seven chapters, a total of one hundred eighty thousand words.The first chapter is the development context of the registered trademark revocation system. The revocation system mainly developed as follows: Trademark--Registered system--Registered system limitation--Revocation system. Trademark is the logical starting point of the trademark system, which is used as a mark of ownership before, and later evolved into a kind of mandatory obligation mark, and then as the carrier of property in nineteenth Century. Modern significance of trademark final formed after the trademark property. When a trademark become a property, it is certainly lead the market main body to enhance the enthusiasm of the application for trademark registration, trademark registration from private control to official control. Beginning with 1875,the first British registration law, the trademark registration system throughout the development of the Trademark Law. Under the registration system, the contradiction between the absolute nature of the trademark right and the scarcity of the trademark resources, the stability of the trademark right and the change of the market always exits. And with the important role of trademark in the commodity economic development and the public interest, the revocation of the trademark which is not in line with the protection is inevitable.The development of our country's trademark revocation system has experienced four stages:germination,development,stagnation and current,it embodies the inheritance and development.There is a considerable development and change in the procedure and reasons of revocation,but the reason which is not used is certain from the beginning of the legislation began to establish,and heritage so far.The second chapter is the theoretical basis of the registered trademark revocation system. The trademark revocation system theory is the lack or loss of distinctiveness. Trademark has a dual structure that is,Trademark's dual structure is the symbol of the trademark and the identification of the trademark,they can be separated.After the trademark registered,the dual structure is not a unified whole,if there is not real use, the identification of the trademark can not be established. The Trademark Law only protect the mark which the dual structure is a whole.When the dual structure separated,the trademark lose the protection basis. The distinctive of the trademark is dynamic and change all the time,it changes as the consumer cognition change,also changes with the scope and the time as the right owners use the trademark.Looking the trademark revocation system from the perspective of law and economics, it is closely related to economic development level, but the essence lies in the trademark's finiteness and the scarcity of resources. Using the cost- benefit analysis method, the trademark revocation system has benefits for consumers and competitors. For consumers, is to reduce the search costs of consumers; And for other competitors, it is increased the selectivity of trademark registration and maximize the resource utilization efficiency, also reduce the enterprise's information costs and ultimately promote the fair competition of the market. The revocation system have its functions, which is divided into four levels:to make up for the defects of the registration system;to promote the real use of the trademark;to standard the use of the trademark;to maintain the fair competition order.The fourth section is the economic analysis of the revocation system,use the cost-benefit analysis method,analysis the market value of the revocation system.The revocation system benefit both consumers and the other competitors,finally promote the fair market competition.The third chapter is the first lack or loss of distinctiveness case :continuous nonuse.Registered trademark continuous nonuse is a commom revocation reason in all countries law.On the nonuse time to revocation,it is divided into three years and five years.To research the nonuse revocation reason,the emphasis is draw a systematical analysis on “trademark use”.The essential elements of trademark use mainly including as follows:first is the trademark owner has the intention to real use of the trademark.We judge the intention of the real use of the trademark usually by the fact and the presumption,symbolic use and false transaction do not consititute a real intention to use,but the use of the legitimate or not does not affect the intent use.Second is the trademark use must be under the trademark owner's will control.Third is the scale of the trademark use,the use of too small scale will be presumed to not real use.Fourth is the trademark can be only used in commercial activity.The trademark use of the formal elements can be also divided into several aspects:first,the trademark use must be public;second,the trademark must be used as to distinguish the source of the goods;third is the trademark used on the specific or similar goods and services.Continuous nonuse as one revocation reason,but if there is some legitimate reason can be used as an exception.On the judge of “legitimate reason”,we need considerate both the subjective and the objective.The subjective aspect,the trademark owner has not given up the subjective intention of the trademark;the objective,the trademark not use is not blame to the owner.The fourth chapter is the second lack or loss of distinctiveness case: improper use. Looking from the legislative origin, revocation caused by improper use has already been done in China and abroad. Drop the reason. However, the provisions of the improper use of trademark are different between our country and abroad. The regulation of our country about the improper use, is mainly to change the details of the registered trademark, which is defined from the use of the form of regulations, does not require the consequences of improper use. This also was criticized by many scholars, it did not fit with the basic legal theory of the trademark law. In comparison, the improper use in other countries, such as positive counterfeit, ownership mislabeled, inaccurate of geographical source, and so on, focuses on the consequences of improper use. That is to say, the improper use of a registered trademark needs to reach the degree of consumer confusion. The only trademark revocation system theory is the loss of distinctiveness. Trademark registrant for the improper use of trademarks, intentionally clings to other registered trademark of goodwill, blurred the line between with other registered trademark. At this point, the original trademark registrant's trademark has lost its distinctiveness, so revoke the registered trademark also has the rationality.The fifth chapter is the third lack or loss of distinctiveness case: trademark degenerate to a general name.This chapter divided into four section,the first section is the legislation and the identification signification of the general name. Degenerate to a general name is also an important revocation reason,the world has a commom stipulate,but there is a big difference in the identification standards of the general name.Identify the general name has important significance,first its conductive to effect display the function of the trademark.Once the trademark degenerate to a general name,become a kind of product,the basic identification function has been lost.Secondly,its benefits to form a fair competition in the market order,if continue protect the degenerated trademark,other producer of the similar products will consume a higher cost when them describe their goods,its unfair.The second section is the cause of the formation of the general names and the different legal consequences.Trademark degenerate to a general name,may be due to the subjective reasons like un-standarded use or have no strong right awareness by the owners,or,improper collected by media or dictionary and other objective reasons,but only the subjective reasons cause the degenerate can be revoked.The third section is the judicial practice of our country,our country's judicial practice formed a series regulations on the characterisitic of the general name,the identification standard,and the time of determination, which has a certain degree of rationality.The fourth section is the judgment standard of the general name,The United States finally confirmed the “consumer main meaning”in their judicial practice has a reference meaning,reshaping consumer cognition as the main criteria for the identification of general names.The sixth chapter is the procedural relief of the registered trademark. Procedural relief has administrative relief and judicial relief in two ways.The procedures of revocation system are difference between countries in the world,especially China's review procedures in trademark revocation is special.But in general,the judicial relief is still the most important way of relief in the world.The proper trademark revocation procedure should consider three factors:legal,fair,and efficiency,and seek compromise and balance between the three.The distribution of burden of proof is also a part of the revocation procedure,”who advocates,who burden of proof”is still a basic principle.The distribution of the burden of proof is different in different reasons,both side's burden of proof should be fully considered.In the revocation procedure,the balance and connection between administrative relief and judicial relief is also important.Under the principle of judicial final adjudication,the administrative power and the judicial power through the benign interaction to make the revocation system to run more scientific,and more rational.The seventh chapter is focus on how to perfect China's registered trademark revocation system.To improve our country's registered trademark revocation system,the premise is to clarify the purpose of the revocation the trademark.The system has two purposes,one is to play the function of trademark recognition,clear up the non-distinctive trademarks out of the registration book,another one is protect the consumer rights and interests,to prevent consumers confused.In entity aspects,to reconstruct the revocation reasons,including:improve the management causes for revocation;redefined the “trademark use”,establish the real intention use standard and distinguish different use standards in different situation;added trademark for three consecutive years without use is non infringement,the defendant can use this defense;use the consumer cognition as the primary standard for determination of the general name,statutory standards as well as the agreement standard as the presumption of the consumer cognition,only can be use when there is no opposite evidence.Procedure change,improve the efficiency is the core,including two parts : first,to improve the efficiency on the basis of compress the Trial level, cancel the review procedure by the commercial judges.Those revoked by the administrative revocation way by the Trademark Office,from the current judicial review into the first instance to the end of the judicial;second is given the court the power to direct revoke the registered trademark,directly sue to the people's court,is still the second instance.