When answering a question from a netizen, a lawyer said that whether cybersquatting is legal depends on the actual situation, rather than directly judging whether it is illegal. Application first and use first are two procedural principles of trademark confirmation, and their substantive basis is registration principle and use principle respectively.
? The so-called registration principle is to determine the ownership of trademark rights according to the order of applying for trademark registration. No matter whether the trademark is used or not, whoever applies first will be granted the exclusive right to use the trademark.
At the same time, registered trademark is a non-legal term with no definite connotation and extension. People also have their own needs when using "trademark cybersquatting", which is quite arbitrary. Its similar terms include "malicious cybersquatting" and so on.
Trademark preemption refers to the actor's pre-registration of trademarks that others have used but have not registered on the same or similar goods; The act of registering a registered trademark or a well-known trademark in advance on the same or similar goods, or on non-similar goods or services; And the act of registering other prior rights already formed by others as trademarks.
According to the provisions of the Trademark Law, trademark owners can choose the following two legal channels to claim their rights:
(1) raised an objection to the trademark announced in the preliminary examination.
According to the provisions of Article 30 of the Trademark Law, "within 3 months from the date of announcement, anyone may raise an objection to the trademark announced after preliminary examination and approval." If the obligee believes that his trademark has been maliciously applied for registration in advance by others, and it is discovered in time during the announcement period of the preliminary examination and approval of the trademark, he may raise an objection to the Trademark Office and request the Trademark Office not to approve the registration.
(2) filing a dispute over a registered trademark with the Trademark Review and Adjudication Board.
According to Article 41 of the Trademark Law, if the obligee thinks that his trademark has been maliciously pre-registered, he may apply to the Trademark Review and Adjudication Board for cancellation within five years from the date of registration of the trademark.
When applying to the Trademark Office or the Trademark Review and Adjudication Board for objections or disputes and claiming rights, the parties concerned shall state the reasons and provide corresponding evidence in combination with the constitutive requirements of the registered trademark act analyzed above. These evidences should focus on two aspects: on the one hand, the evidence of the subjective malice of the trademark registrant, such as the purchase and sale contracts and correspondence between the two parties related to the disputed trademark, and the written evidence that the trademark registrant demanded unreasonably high "trademark transfer fee" from the obligee; On the other hand, it is the evidence that the right holder used and publicized the disputed trademark in advance, such as the entrustment contract and corresponding documents between the right holder and the trademark design and trademark logo printing unit, the advertising production and release contract of the trademark, newspapers and magazines that publicized the trademark, the purchase and sale contract and invoices of the trademark goods, etc.