Review On "Other Unfair Means" In Trademark Law

The "other improper means" clause,as the basic clause governing malicious registration,is controversial in the scope of application and the relationship with other relevant clauses.As a general clause governing malicious registration other than those prescribed by laws,it has been gradually guided as an absolute cause for the invalidity of trademarks,and is no longer applicable to malicious registration infringing upon private rights.Scholars and the judiciary have different views on this issue.This paper discusses the reasonableness of the clause of "other improper means" as an absolute cause of trademark invalidity from both theoretical and practical aspects,as well as the position of the clause in the malicious registration regulatory system,and analyze the newly revised legal provisions on "bad faith registration lacking intent to use" and discuss the role of the "improper means" system and the object of its application.It opens with an analysis of the evolution of the law and changes in judicial practice with respect to "other improper means",i.e.,the evolution of the Trademark Act 2019 and the content of the provisions of this Act 1993.Since the original creation of the Trademark Law in 1993,this provision,combined with the 1995 Implementing Regulations of the Trademark Law,has been used to protect both private rights and to safeguard public interest and public order.However,when the Trademark Law was subsequently amended in 2001,the relevant contents of the original Implementing Rules of the Trademark Law corresponded separately to Articles 13,15 and 31 of the Trademark Law thereafter.The understanding and positioning of the system of "other improper means" after the amendment were greatly divided.Although this provision was carried over in subsequent changes to the law,due to the established practice in judicial practice,the "other improper means" provision has often been invoked to regulate improper registrations that are not covered by the law and occupies a pivotal position in suppressing malicious registrations.In the case of "Cheng Lian" in 2008,the Supreme Court gradually made its view clear and proposed that the "other improper means" clause should be used to regulate malicious registrations that disrupt the order of trademark registration and damage public interests.This provision has also been confirmed in the Opinions on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation.In judicial practice,the application of the "other improper means" system gradually began to change.The second chapter discusses how to identify and apply the term "other improper means" in combination with the application of "other improper means" in judicial practice.The reason why the Trademark Law differentiates the absolute cause and the relative cause is to protect the right of disposition enjoyed by the parties and the interested parties and to avoid the excessive interference of public power."Other improper means",as an absolute cause of action provided by the law,at the same time stipulates that the provision is not subject to the limitation of time and the limitation of the proposer,and is a self-correction by the administrative organ for the registered trademark approved by it.If the provision is used for the protection of private rights,it will lead to the interference of public power with private rights and affect the right holder’s free exercise of the right of disposition.However,there are more and more malicious registrations against private interests in reality,and there are loopholes in the relative cause of trademark invalidity in the Trademark Law.Therefore,how to determine the nature of the provision and how to apply it is of great significance.In addition,since the "other improper means" clause stipulates that the trademark is declared invalid in Chapter V,and the object is a registered trademark,there is much controversy as to whether the clause can be invoked to stop the malicious registration in the trademark opposition procedure in practice.A new article 4 of the Trademark Law 2019 may provide an answer to this question.The third chapter elaborated 2019 "Trademark Law" 4 new content legislation intention and each essential factor meaning.Article 4,as a key clause of the Trademark Law revised in 2019,has aroused great concern among scholars as to how to understand that "malice" and "not for the purpose of use" have a significant impact on the practical application of Article 4 and are also related to the future application of Article 44.According to the provisions of the Opinions on Hearing Administrative Cases of Trademark Registration formulated by the Beijing High Court,there is a conflict between the two provisions and the objects are similar,so it is beneficial to judicial practice to distinguish the relationship between them.Because the malicious registration of trademarks is becoming more and more serious in China and disturbs the order of registration and the market environment of fair competition,Chapter 4 tries to expound the applicable procedures,scope and conditions of Article 44 according to scholars’ opinions and judicial practice and the author’s own understanding of Article 44 and the relationship between Article 4 and Article 44.In the process of elaborating the applicable procedures and scope of application,it is necessary to effectively crack down on malicious hoarding and preemptive registration of trademarks in multiple links by distinguishing the application scope and procedures of Article 4 from Article 44.In addition,through summing up the experience of the judicial practice,summed up the article 44 in the application of the three factors,hoping to bring enlightenment to judicial practice.