Prohibition Against Malicious Registration Of Unregistered Trademark

With the rapid development of economic globalization the value of trademarks as intangible property of enterprises is increasing,and the awareness of trademark protection by enterprises is gradually increasing.But in the meantime,because of the economic value of trademarks,there have also been many malicious preemptive use of trademarks.The provisions of Article 32 of the Trademark Law on the protection of the legitimate rights and interests of unregistered trademark prior users provide the prior users with protection against others from maliciously registering their trademarks..However,in judicial field,there are some dispute on the understanding of the applicable recognition criteria of Article 32.This article starts from cases in the judicial field,combines domestic practices and theories,with a view to starting from Article 32 of the "Trademark Law",combing the identification standards for the illegal registration of unregistered trademarks,and explore the problems that still exist and the relationship between related laws.This article has three main parts:Chapter One mainly sorts out relevant laws and regulations prohibiting registration of unregistered trademarks in China,and exploring describe the system value of the second half of Article 32 of the Trademark Law.The second chapter is the core content of the article.It mainly analyzes the recognition criteria of the applicable conditions elements stipulated in Article 32 of China’s"Trademark Law.First,discuss the legality of the prior use through the trademark dispute case of "Fishing Master",and make clear that "legality" requires that the use of a trademark conforms to the provisions of the Trademark Law and related laws,and the production of goods or services The legality of business activities should not negate the effect of the protection of relevant unregistered trademarks.Second,by comparing the similar cases of "Land Rover","Sony Ericsson",and "Viagra",it clarifies the different perspectives on the judicial practice of "passive use",from the generation of "passive use"and the consumer rights From the perspective of protection,"passive use" is deemed to be trademark use.Third,the analysis of the use of regions,based on the controversial hotspots in the "MUJI" case,the "NUXE PARIS" case,and to fully adhere to the impact of internationalization while adhering to the principle of regionality.Secondly,regarding how to determine "has a certain influence",the author mainly discusses its judgment factors through the "Laofengkou" trademark case,mainly from the aspects of the public’s awareness,time factors and geographical factors.And analyze the subjective and objective factors in the identification process.Finally,through the introduction of the "NUXE PARIS and Tree" case,the key to the determination of "unfair means" is malicious,and further elaborate on the meaning of malicious and how to recognize it.In addition,it also discussed the exception of the well-known squatting situation and the relationship between"unfair means" and certain influences.Chapter 3 starts from the relationship between the second half of Article 32 of the Trademark Law and Article 59,paragraph 3,Article 44 and Article 4,and considers the prohibition of unregistered trademarks.