The Identification And Legal Regulation Of Trademark Malicious Action

Trademark malicious action is a kind of infringement behavior in which the litigant harms the interests of others as the purpose of litigation under the premise that the litigant knows that there is no legitimate cause of action,so that the defendant obtains an unfair judgment or is in an unfavorable judicial dispute.In essence,it is a special tort that abuses the judicial remedy right of trademark right.It not only seriously damages the legitimate rights and interests of the other party and consumers,but also disturbs the normal production and management order as well as the judicial order.It violates the principle of good faith and the principle of prohibiting abuse of rights,destroys the theoretical system of balance of interests and judicial justice,and wastes judicial resources.In practice,the malicious litigation of trademark mainly manifests as the ways of abusing public power relief and private power relief before litigation;In the action,the form is legal but the substance is illegal,including malicious registration of the trademark used by others and trademark hoarding litigation;After the lawsuit is through the withdrawal of the lawsuit after the lawsuit and other ways.Through the analysis of the expression forms of trademark malicious litigation,it is necessary to have a better reference for the identification and identification of trademark malicious litigation in practice.Due to the limited legal provisions on the identification and regulation of trademark malicious litigation,and the poor operability of the principle legislation,and the inconsistent judgment criteria of the subjective "malicious",the regulation of trademark malicious litigation has a difficult position.In this paper,the identification of trademark malicious litigation in practice is discussed mainly through the analysis of four elements of infringement,and focuses on solving the "subjectively malicious" element,through external objective behavior to assist the determination of subjective will.Aiming at the problem that the current legal system of regulating trademark malicious action is not complete,this paper tries to improve it from two ways of substantive law and procedural law respectively.Substantive law mainly includes the addition of tort defense provisions and strengthening the connection between administration and justice,while procedural law mainly includes the improvement of pre-trial injunction and preservation system,non-infringement litigation system,counterclaim system and strict restriction on plaintiff’s withdrawal of litigation.In this way,it is hoped to actively prevent and effectively curb the occurrence of trademark malicious litigation cases,and also provide detailed legal basis for the regulation of trademark malicious litigation.