Study On The Regulation Of Trademark Registration In Bad Faith And Without Intention To Use

In the 2019 revision of China’s trademark law,Article 4 was adjusted to make it clear that "applications of trademark registration in bad faith that are not intended for use shall be rejected".It added the application for trademark registration in bad faith without intention to use as the reason for rejecting the application,and included it into the absolute grounds of refusal and invalidity of registration,which is a conducive way to strengthen the use of trademarks from the source and protect the public resources of trademark at the very level of trademark acquisition.At the background of this amendment,this paper tries to discuss some related theoretical issues of the rule,and to figure out how to improve Chinese examination rules of trademark applicants’ intention to use and bad faith,and to standardize the registration of defensive trademarks.The first part is an overview of the trademark registration in bad faith without intention to use,including the analysis of related concepts and the comparison of the regulating paths of the trademark registration in bad faith without intention to use before and after the fourth amendment.It will start from the definition of the concepts of trademark use,intention to use a trademark and trademark registration in bad faith,and will clarify the relationship between "not intended for use" and trademark registration in bad faith.It is proposed that trademark registration in bad faith without intention to use is a special type of trademark malicious registration,of which application is not to use the trademark for commercial identification of products or service,but to achieve other improper purposes against the principle of good faith.The fourth revision of the trademark law has made important progress in regulating the registration of trademarks in bad faith without intention to use,but also lefts some questions to be answered.The first is the specific regulation scope;the second is how to strengthen the practical operation;the third is the necessity of retaining the registration space for defensive trademark and the need to standardize their registration rules.The second part is a theoretical discussion of the rules of the trademark registration in bad faith without intention to use.Firstly,this part proposes that its subjective recognition should adopt the subjective analysis method of trademark registration in bad faith,by investigating the realization and motivation of registrants.The realization level is not limited to the awareness of the prior use status and prior right status of the trademark.The motivation level includes two aspects,negative motivation and positive motivation.At the same time,only when the both are satisfied,can the application constitutes the trademark registration in bad faith without intention to use.That is to see,in the context of Article 4 of the trademark law,the only condition of "not intended for use" is not enough to constitute the reasons for rejecting the application,which must meet the requirements of both no intention to use and trademark registration in bad faith.Secondly,based on the classification of the trademark registration in bad faith without intention to use,this paper analyzes the scope of behavior regulated in Article 4 of Trademark Law,which should not be influenced by the popularity of the trademark in prior use and the specific relationship between the applicant and the third party,but includes all applications with attempts to infringe on personal interests or public interests to seek personal interests.Finally,it discusses the rationality of regulating trademark registration in bad faith without intention to use.The third part analyzes foreign rules of trademark registration in bad faith without intention to use.Under the EU trademark law system,because of the complete system of norms for trademark registration in bad faith,the trademark registration without intention to use is not needed to be individually specialized in law,and its judicial practice adopted the path which is made for trademark registration in bad faith to regulate the trademark registration without intention to use.It provided us with some references for the investigation elements of registration in bad faith without intention to use.Based on the acquisition system of trademark by use,the United States constructed the examination rules of trademark use intention in the trademark registration procedure which guaranteed the use of trademark to the greatest extent,and can be adapted in the examination procedures in our country by removing the factors related to the fundamental acquisition system of trademark.In addition,with the same acquisition system of trademark by registration,Japan has stipulated the requirements for the applicant to explain the purpose of registration under specific circumstances,while South Korea has established authorized norms for trademark registering with intention to use.The fourth part analyzes how to construct the implementation rules of the trademark registration in bad faith without intention to use and related issues.Specifically,it includes the distribution of the burden of proof and the investigation elements of the trademark registration in bad faith without intention to use,and discusses how to further strengthen the implementation of the intention to use the trademark under the background of the new amendment law,as well as the practical necessity and normative problems of defensivetrademark.On the basis of the principle of "who claims,who adduces evidence",the author proposes to respect the right of self certification of trademark registrant.In view of the different states of trademark use in objection procedure and invalidity procedure,the specific investigation elements of them are listed respectively.At the same time,based on the two modes of obtaining trademark rights,this paper provides a two-way idea for further strengthening the implementation of trademark use intention and puts forward a "two-step" strategy.Defensive trademark is the exception of the fourth amendment.In order to avoid defensive trademark becoming a registration tool of the trademark in bad faith without intention to use,this paper proposes that we should develop our strengths and avoid weaknesses,and build a strict defensive trademark registration and management system.