Research On The Invalidation System Of Registered Trademark

The invalidation system of the registered trademark is an important content of trademark legal system.A quarter of the provisions of our country's trademark law relate to the system.At present our researches on the system pay more attentions to small specific issues,but less to the legal value,consequences and invalid reason,which leads to continuous controversy about our invalidation system of registered trademark in theory and practice,such as how to run,improve and reform.The main content of this paper includes as follows,the development context,legal value,absolute reason,relative reason and legal consequence.The paper's object aim is to provide intellectual theory exploration and improve the invalidation system of registered trademark.This paper discovers the historical evolution of invalidation system of registered trademark and the corresponding juridical logic;interprets legal value of the invalidation system of registered trademark on the basis of the justice value and order value;analyzes the invalid types and the relative and absolute reason;With the complex behavioral theories of trademark registration and legislation of the invalidation system of registered trademark from all over the world we can discuss legal consequences brought by the registered trademark invalidation.On the basis of the above theory,we put forward some advices for the improvement of the invalidation system of registered trademark.The first chapter includes three parts,which are historical evolution of the invalidation system of registered trademark from the outside,the evolution in China,and rational thinking of the invalidation system of registered trademark.By reviewing the trademark laws history of early and analyzing early text of some countries' trademark laws and international treaty,we find that the invalidation system of registered trademark dues to legal property status of registered trademark.Under registered principles the registration becomes the only source to protect the registered trademark exclusive right according the trademark law.So some businessmen began malicious registration and unfair competition in the market by using of the registration system.As the absolute right,registered trademark exclusive right involves social and public interests,prior rights and others interests,which will influence the legitimacy of the registered trademark.Legal needs to make the necessary response to this,so the legal value of invalidation system of registered trademark begins to emerge.The invalidation system of registered trademark in China appeared early on the history stage and presented a more mature state,but it is not continue to develop.Our invalidation system of registered trademark tortuously develops up to now subject to public power and the development of market economy.The modern construction of invalidation system of registered trademark shows three mainly aspects in many countries,which is the selection of procedural mode,the category of the invalid reason and the legal consequence.There are three models of using power to invalidate trademark' registration,the first mode is that only the trademark administrative organs can invalidate trademark' registration,the second mode is only the court has the power,and the third mode is that both the administrative organ and the court both can invalidate trademark' registration.The invalid reason of registered trademark can be divided into absolute reason and relative reason.The second chapter is the legal value of invalidation system of registered trademark.The rationality of invalidation system of registered trademark can be proved on the theoretical basis of the justice value and order value.The value of the invalidation system of registered trademark is given priority to justice value and order value,which embodies the realizing method of value to the invalidation system of registered trademark,namely the structure of system,operating conditions,the reason and legal consequences.Distributive justice and corrective justice constitute the main content of the justice value.Distributive justice is shown as: if the prior right or prior interests have been infringed by registered trademark the law should dispute a eliminate system for interested people;Registered trademark is absolute right that will affect the society interests,so it needs measures through many procedural.Corrective justice value is shown as: the administrative organs correct a trademark registration behavior that was mistakeen;the court find the illegal trademarks registration to be invalid.The invalidation system of registered trademark aims to safeguard the order of the trademark registration management and the market order,to protec the rights of the parties.The order value of invalidation system of registered trademark is shown as: maintain the fair competition order and the market order formed through the time.The third chapter is absolute reason of registered trademark invalidation.One of the main features of the absolute reason is that the registered trademark infringes the public interest.If something belongs to the category of the absolute reason the authority shall invalidate the registered trademark and anyone has the right to request invalidation of the registered trademark.According to the Paris Convention and the provisions of the trademark law from other countries absolute reason can be classified three categories,namely the reason of violation of the legality,having no significant and violation of the public order and good custom.Illegal reason includes person whose identity is not legitimate,marks seeking registration don't occupy public symbol resources rationally,and marks detrimental to the state symbol.Distinguishing season emphasis on the identification of trademark itself,the mark is prohibited to be a registered trademark if fair competition shall be impeded,such as the descriptive marks of product characteristics and functional marks.Violation of the public order and good custom is a catch-all clause of absolute reason,which can regulate one's psychological regulation,maintain honesty and credit in social life and business ethics,maintain the business order of fair competition.The fourth chapter is the relative reason of registered trademark invalidation,which is made up of four parts: the prior rights or interests to the trademark registration,prior right including prior intellectual property right and personality right,prior legal interests including unregistered trademarks and other interests,and coexistence agreement of trademark registration.The scopes of prior rights in our country are mainly two categories.One is the prior intellectual property,such as a registered trademark,copyright and design patent.The other is prior personality right,such as natural person's name,portrait,and the legal person's name,etc.The prior rights and interests in trademark law have some general characteristics: the object of the rights and interests is unregistered trademarks that can distinguish difference source of goods or services.The influence of the unregistered trademarks is not constitutes a necessary condition of relative reason.The coexistence agreement of trademark registration is the embodiment of the autonomy principle of private rights meaning,it cannot eliminate the possibility of confusion,but the possible conflicts and disputes can be in advance avoided.The law should recognize the validity of coexistence agreement.The fifth chapter is legal consequences of registered trademark invalidation including invalid registration,invalidation of registered trademark exclusive right and how to handle other problems.The legal consequences of registered trademark invalidation through legal procedure can be understand from two aspects: one is the legal effect of exclusive right to use that registered trademark which involves registered trademark,behavior applying for registration trademark and review registration behavior.In gross,review registration behavior of an administrative organ is invalid,the registered trademark becomes a purely commercial marks,the exclusive right of trademark registration is invalid.The second aspect is how to treat some problems around the registered trademark and the related legal behavior,which is shown that if legal document from administrative organs or judicial have already been executed,or the trademark assignment or license contract have been fulfilled,the legal effect of registered trademark invalidation shall not be retroactive.The sixth chapter is improvement of the declaration invalidation system of registered trademark in our country,mainly includes introspection,improvement and construction of judicial decision model.The main problem of our declaration invalidation system of registered trademark is that the administrative process and judicial process tangle each other,and which can't solve the effect problem of registered trademark as soon as possible.Based on the principles of efficiency,if the court ruled that a later registered trademark infringe prior rights or interests,the trademark review and adjudication board may invalidate a registered trademark directly according to the judicial decisions.In order to avoid repeated processing there are two kinds of path to choice: one is that the trademark review and adjudication board declares a registered trademark to be invalid without the decision of trademark office.Second,after the declaration invalidation of a registered trademark by the trademark office the parties may institute directly legal proceedings in the People's court.In the infringement process of trademark registration the court shall exclude the effectiveness of a registered trademark right when the parties defend with the registered trademark invalidity.The scheduled period to registered trademark invalidation shall expand,malicious registration behavior are not restricted by scheduled period,and at any time one may apply for a registered trademark invalidation.Our country should construct the judicial decision system of registered trademark invalidation.The People's court in fact already enjoy final jurisdiction to registered trademark invalidation,and has the power to decide the administrative act invalid.Foreign legislative cases show that the registered trademark invalidation was ruled by the court is the main mode.At present our country has begun to establish the intellectual property court,the supreme people's court has set up the circuit court,so there is no the existing legal and institutional obstacles that the court ruled the registered trademark invalid.That is a way of complete reform.