Research On The Identification Of "Maliciously Registered Trademark Not For Use"

In April 2019,in the fourth amendment of the trademark law,a series of problems in the implementation of the trademark law in recent years were fully responded to,mainly in trademark registration,trademark infringement and other aspects.Among them,the most noticeable one is the addition of "malicious trademark registration application not for use shall be rejected" in the first paragraph of Article 4 There is no doubt that how to apply Article 4 in practice has become a difficult problem.The difficulty lies in how to identify "malice" and "non use for purpose" in Article 4 in practice,what is the relationship between them,and what is the relationship between Article 4 and other articles in trademark law.Based on the principle of respecting the purpose of legislation and combining with relevant judicial cases,this paper makes an in-depth analysis of Article 4 of the trademark law.The above issues are identified as follows:1.Identification of "malice".In the stage of trademark review,beyond the needs of production and business activities,a large number of registered trademarks without justifiable reasons can be considered as "malicious".Then judge whether there is transfer or malicious litigation for profit after the approval of the registered trademark,or consider whether the trademark applicant has infringed the rights of others,such as registering the same or similar trademark with a well-known trademark,infringing the prior rights of others,etc.,comprehensively identify "malicious" in Article 4 of the trademark law.2.Identification of "not for use".Based on the analysis of the judgment of "not for use" in the past judicial practice,this paper holds that the most important factor in the judgment of "not for use" is the number of trademark applications.If the trademark applicant does not have a proper reason to apply for registration into hundreds of thousands of trademarks,it will be directly recognized as embezzlement of public resources,not for use Italian registered trademark.Secondly,the factors that can be considered include whether to infringe others’ prior rights,transfer for profit and other factors.3.The relationship between "malice" and "not for use".This paper studies its legislative background and thinks that it should be interpreted as an independent element of each other.Only when the trademark applicant is "not for the purpose of use" and "malicious",can the trademark application be rejected.The draft amendment to the trademark law reveals that the original legislative background of Article 4 is to regulate the trademark registration "not for the purpose of use",but in consideration of the defensive trademark situation,the "malicious" factor is added to the amendment.It is obvious that article 4 of the trademark law can be considered to be in line with when the two factors are established at the same time.4.Based on the relevant official documents and academic opinions,this paper holds that article 4 of the trademark law is intended to regulate the phenomenon of trademark hoarding,so its interpretation should also comply with the legislative purpose,and should not be blindly expanded.China’s trademark law has formed a relatively perfect legal system for malicious registration of trademarks,which does not belong to the provisions of Article 4 The situation can be regulated by other laws.