A Comparison Of China And Japan On Cancellation Revocation System Of Trademark Registration Based On Non-Use

With the development of economy, the value of trademark has been even moreprominent. As the trademark registration system is employed in China, it becomesunavoidable that the trademark is idled for a long time after its registration. Such“side effect” could be eliminated by the cancellation trial system of trademarkregistration based on non-use. In current judicial practice, it has been a bone ofcontention to use the trademarks in the designated goods on account of thecancellation trial system of trademark registration. The legislative goal of thecancellation trial system based on three-year non-use is to improve the utilization oftrademark, eliminate to idle trademarks and avoid the waste of trademark resources.However, there is only limited statement of cancellation trial system in the TrademarkAct of China, not to mention the definition of “trademark”,“designated goods”,“utilization” and “warrant”. Therefore, it brings problems in judicial application.Based on the current legislation and judicial practice in China as well as therelevant legislation and case in Japan, this paper conducts a systematic analysis of thecancellation trial system of trademark registration from four different aspects. Themain goal of this paper is to facilitate the improvement of the cancellation trial systemof trademark registration. Thus, the cancellation trial system could play an important role in encouraging market operators, maintaining the market order and protecting theconsumers’ interests. This paper has five sections and is organized as follows:Section I introduces two cases of GNC and PAPA JOHN’s for cancellation oftrademark registration based on non-use. From the judicial practice, this paperanalyzes the difference of applications of the cancellation trial system in China andJapan, emphasizing the importance of comparison in these two countries.There are two parts in Section II. The first one states the standard of identity forword mark and figurative mark, which are the main components of trademark. Then,the final judgment criterion is derived from the analysis of the changes of identity forboth marks. Combined with analysis of cases, the second part discusses the tradabilityand marketability of goods or services. It bridges the gap between theory and practice.Section III states the utilization of trademark, which refers to the openness,proactivity, legality. It comes up with the judgment standard of trademark use fromthe analysis of intrinsic meaning of utilization, especially the rationality of symbolicutilization and legitimate utilization.Section IV analyzes the warrant of non-use and it demonstrates that the standardof identifying warrant is much more tolerant in China than that in Japan. There is nouniform standard of identifying warrant except using statutory circumstances.Section V compares the issues of time and proof in cancellation trial system oftrademark registration. First comes the identification of the three-year non-use, whichtriggers the problem of identifying temporary use. Then it discusses the problem ofprescription: the modified Trademark Act in China makes the fact of non-use as adefense of using trademark without permission. Last but not least, it discourses issuessuch as the proof of time and requirements.