Understanding And Application Of Article 44 Of Trademark Law "Obtaining Registration By Other Improper Means"

There has been a long-standing dispute on the understanding and application of the first paragraph of Article 44 of the Trademark Law "obtaining registration by other improper means".The main disputes are: in substance,whether it can be applied to malicious registration such as trademark hoarding and large-scale rush registration without use purpose;in procedure,whether it can be extended to the rejection and objection procedure.Due to the lack of legal regulations on these acts in the old trademark law,the scope of application of the entity and procedure of this paragraph is expanded uniformly.In 2019,the trademark law has made a major revision,and Article 4 added "malicious trademark registration application not for use shall be rejected".This means that most malicious registration acts that were originally adjusted by "obtaining registration by improper means" can directly invoke Article 4 in the review procedure,and become one of the refutation reasons in the subsequent objection and invalidation procedures.Therefore,the application of this paragraph will change significantly.This paper mainly discusses the applicable value of the "improper means" clause after the amendment of the new law.On the one hand,return to the original intention of legislation,and emphasize the legitimacy of means in the order of trademark registration;on the other hand,continue to play the supplementary function of legal loopholes in this paragraph.For those who are able to apply Article 4,the "improper means" clause is generally not applicable.If article 4 is difficult to adjust other improper registration behaviors,including new types of malicious registration behaviors that are unforeseen but may appear in the future but difficult to adjust under the trademark law,if they meet the applicable premise of the "improper means" clause,they can still apply.The full text is divided into four parts: the first part,combing the legislative and judicial evolution of the "improper means" clause,from which to explore the development and problems of the clause.The second part,on the basis of understanding the new content of the fourth paragraph of the new law,obtains its influence on the "improper means" clause and the relationship between the two clauses in the application of law,and summarizes the possible situation that the "improper means" clause will no longer be applied in the future.The third part,from the perspective of legal interpretation,explores the normative meaning of the "improper means" clause,analyzes the legal basis that this clause can be applied by analogy in terms of procedure and substance,and paves the way for the following suggestions on the application of law.In the fourth part,the application of this article is proposed.On the one hand,the article of "obtaining registration by improper means" will return to the original intention of legislation,on the other hand,it will continue to undertake the function of filling legal loopholes.