On Determination Of Trademark Registration In Bad Faith

The problem of trademark registration of bad faith has a long history in our country.Although the previous three amendments to the Trademark Law have formed a system to regulate bad faith registration,serious problems still exist.In order to solve the increasingly prominent problem of trademark squatting,the fourth amendment to the Trademark Law in 2019 provides " trademark registration of bad faith without intention to use" as a ground for trademark rejection,opposition and invalidation,enhancing the regulation of bad faith registration.Nevertheless,the current Trademark Law regulation system for bad faith registration still needs to be further improved.The first chapter analyzes and explains the current situation of bad faith trademark registrations in our country and the existing problems of the Trademark Law in regulating bad faith registrations.In this part,the author illustrates two types of bad faith registration and pointed out that the confusion of the different concept of bad faith,the unclear function of bad faith,and the vague standard of bad faith,are the main reasons resulting in bad faith registration problems.The second chapter further analyzes the system of regulating bad faith registration in our country.In this part,the author firstly interprets from two perspectives: bad faith registration that infringes on private legal interests and that infringes on public legal interests,and studies its current practice in our country.Then,the author points out that to find the protection of certain rights and interests as a prerequisite for determination of bad faith registration has certain drawbacks,because it will make it difficult to comprehensively regulate bad faith registrations.Then,this article explains the ambiguity and two different interpretations of Article 4 of the 2019 Trademark Law.Although the term "bad faith" is used in this article,problem still exists that whether the "bad faith" concept in this article can be used to regulate bad faith registration.Actually,it has already caused disputes in practice.The third chapter introduces the regulation of bad faith registration in EU trademark law.In the EU Trademark Law,bad faith is seeing as a special clause and EU has experiences in applying bad faith registration clause in practice.The standard for determining “bad faith” in EU has undergone a process of establishment,development and improvement,which is helpful for our country and can deepen our understanding of bad faith registration.The fourth chapter is to provide suggestions for our country’s trademark law.The author points out that,first,it should be clear that the essence of bad faith registration is that the intention of the trade mark application deviates from the trademark registration system and the basic functions of trademark.Any trademark application not with the aim of engaging fairly in competition but with the intention of undermining,in a manner inconsistent with honest practices,the interests of third parties,or with the intention of obtaining,without even targeting a specific third party,an exclusive right for purposes other than those falling within the functions of a trade mark,in particular the essential function of indicating origin,constitutes bad faith registration.Secondly,bad faith should be stipulated as an independent and absolute ground of invalidation.Even if the trademark application does not infringe the private or public legal interests,the trademark can still be declared invalid on the ground of bad faith.Finally,the criteria for the determination of bad faith should be improved to avoid arbitrariness and increase predictability of the determination of bad faith registration.