The exclusive right to use a trademark is obtained by applying for registration or transfer at the Trademark Office. However, in order to overcome the disadvantages of registration, it also provides for the revocation of a trademark that has not been used for three consecutive years without justifiable reasons. system. In order to circumvent this cancellation system, some trademark rights holders only use their trademarks symbolically, which is not a use within the meaning of trademark law.

①The proposal of symbolic use of trademarks

The external and objective aspects of trademark use are explained, including various commercial activities; the subjective level, that is, the use behavior in the sense of trademark law is Refers to usage behaviors that can realize the function of identifying the source of a trademark. The symbolic use of a trademark meets the requirements at the objective standard level, that is, there is a corresponding trademark use, but it does not meet the subjective level requirements, that is, it does not play a role in identifying the source of goods or services in the field of market circulation.

②Realistic Dilemma in Practice

The first time the concept of symbolic use was proposed in a trademark cancellation case was the Beijing Higher People’s Court’s (2010) Gao Xingzhong Zi No. 294 Administrative judgment regarding case No. 1240054 "Bridge DAQIAO and Pictures".

The judgment stated that “the use of a trademark should be authentic and directional, that is, the use of a trademark is under the control of the trademark owner, and the use can express the association between the trademark and specific goods or services. The symbolic use of a trademark solely or mainly for the purpose of maintaining the validity of the registration shall not be regarded as the use of the trademark within the meaning of trademark law. To determine whether a trademark use is symbolic only or mainly for the purpose of maintaining registration validity, factors such as the subjective purpose of using the trademark, the specific use method, and whether there are other uses of the trademark should be comprehensively examined.

Although "comprehensive inspection" is proposed in this judgment, the extension of comprehensive inspection is relatively vague, and it is not easy to achieve rational measurement in individual cases.

For example, in the administrative case No. 7130 of Beijing Intellectual Property Court (2017) Jing 73 Bank Chu, the third party Manster Company submitted three pieces of evidence, although the court determined the validity and validity of the three pieces of evidence. authenticity, but pointed out that it was difficult to prove that the third party’s use of the disputed trademark had reached a certain scale within the specified period based on these three pieces of evidence alone, and believed that the third party’s use of the disputed trademark lacked true and bona fide intentions.

In the EU's famous "La Mer Technology Company v. Gaumach" case, the Court of Justice of the European Union explained the true use. Gaumach registered in different categories in 1988 and 1989. "Laboratoiredelamer" trademark. La Mer Technology Company needs to use the "LaMer" trademark on cosmetics and similar products, so on March 27, 1998, it applied to the Trademark Office to cancel the "Laboratoiredelamer" trademark that had not been used for five consecutive years after registration.

During the course of the court hearing, it was discovered that within five years, High Mach had authorized HealthScopeDirect to use "Laboratoiredelamer" to sell cosmetics in the UK, but as for the fact that High Mach had only sold a few hundred pounds of goods , the court found after review that the sale of only a few hundred pounds was not used by High Mach Company to retain the trademark, but was related to factors such as market configuration, which was a market failure.

In the above two cases, the judgments pointed out that the trademark rights holder was a small-scale operation, but the two cases had opposite results. There are many similar situations. The main reason is that tangible objective evidence and intangible subjective meaning will form a natural barrier. The connection in between is very blurred, which hinders the practical judgment of whether the trademark is used symbolically. From a practical point of view, the judgment of subjective status is far more difficult than the judgment of objective indicators. It is often necessary to objectify it and measure it with corresponding specific indicators, so there is no possibility of simple application.