The Judicial Recognition Of Defensive Trademark

Defensive trademark refers to the trademark that the enterprises use it as a defensivestrategy in a creative way in the implementation of intellectual property strategy.Defensive trademark is the general term of defense trademark and associated trademark.In the reality of the market activities, many enterprises are free to copy or imitate others’originality trademarks, in particular, well-known trademarks on the other category ofgoods or services other than the approved use of the goods or services of the trademarkbrand. All these trademarks have been formed a great influence during years of use. Theyare going to use these well-known trademarks for the interests of the unfair competition.We call this kind of behavior as “free rider”. Trademark owner in order to protect theirtrademarks credibility or corporate reputation has to register more and more trademarks,that is, the so-called defensive trademark registration. But there is no perfect defensivetrademark legal system in China’s current trademark law. As a result, on the one hand,there is still hidden trademark rights trouble in the enterprise which registered defensivetrademark. On the other hand, such enterprises active defense behavior makes trademarkapplications increasing, even leads a greater pressure to the trademark examination whichfurther affect the review of speed. At the same time, defensive trademark make trademarkenclosure and trademark hoarding phenomenon, excessive protection of trademarkowner’s trademark rights.Although there is no perfect defensive trademark system in China’s current trademarklaw, but there are some similar defensive trademark content regulations. According to thereality of the actual needs of the market, balancing the interests of the parties by judicialmay be an effective way to solve the above problem in the absence of perfect laws andregulations. So, in this paper, I use the theory of judicial interpretation to make a study onthe judicial determination of defensive trademark, in order to solve the above problems that defensive trademark produced and balance the interests of trademark owners andothers. This study discusses the following aspects. First, define the relevant basic conceptsand the connotation of defensive trademark，make a broad classification for defensivetrademark. Second, analysis the rationality of the existence of defensive trademark in ourcountry, point out the function and significance of the defensive trademark in protection oftrademark rights in China. Third, analysis the necessity and possibility of judicialrecognition of defensive trademark, as well as the theoretical basis and principles ofjudicial recognition, clarify the content of defensive trademark judicial cognizance, andhow to maintain the defensive trademark, discuss the effect of judicial recognition ofdefensive trademark. In the end, put forward some suggestions on how to get best judicialrecognition of defensive trademark.