| In recent years,a mass of trademark hoarding and malicious application for cancellation phenomenon have appeared in China.The institution of cancellation of registered trademarks which have ceased to be used for three consecutive years is an important system in the trademark law.Its theoretical bases are Locke’s theory of labor and property and the basic function and nature of trademark.Trademark resources are limited,and trademark cancellation system is also designed to encourage trademark owners to utilize trademark resources.The function of trademark is to assist customers to identify the origin of goods and services.And only when trademarks are being used in commercial activities can serve their functions.This cancellation system had been established since the promulgation of trademark law,but it was starting to be taken seriously after the third amendment of trademark law.In accordance with the systematic requirements,after the fourth amendment of trademark law,there have been inconsistencies between trademark cancellation system and malicious registration not for the purpose of use clause and opposition system and declaration of invalidation of registered trademarks system and system of infringement of right to exclusively use a registered trademark.Whether there will be an overlap area governed by both trademark cancellation system and malicious registration not for the purpose of use clause;while in opposition system and declaration of invalidation of registered trademarks system,whether the appellee has the right to take appellant’s three consecutive years unuse as defense or not;in system of infringement of right to exclusively use a registered trademark,a trademark which hasn’t been used for three consecutive years and applied for cancellation is still a valid trademark,and thus other trademark users of the unuse trademark need to bear the responsibility of damages.Moreover,since the requirements of filing application for cancellation of register trademarks,plenty of these malicious applications also post threats to the normal trademark management order.Regarding to the inconsistencies between these systems,trademark laws of German,European Union and United Kingdom offers us ways to solve them.They give appellee the right to defense of no use in these systems.Japanese trademark law has a chapter to regulate defense trademark to solve the problem of malicious application for cancellation.Drawing on the practices of the above countries on solving the inconsistencies between these systems.Chinese trademark law can also give appellee in trademark cancellation system the right to defense of no use and reject plaintiff’s claim of infringement lawsuit.Whereas inconsistencies between trademark cancellation system and malicious registration not for the purpose of use clause can be solved through construes of laws,as although there are overlaps areas governed between these two systems,the existence of article 4 will not weaken the function of trademark cancellation system.Finally,with regards to malicious application for cancellation phenomenon,besides learning from the practice of Japanese trademark law,we should also enhance the management in respects of judgment of applicants’ intents,restrictions of theirs rights and establishment of protection period of trademark cancellation application. |
