However, in recent years, due to the imperfect legislative provisions on trademark objection system, the phenomenon of malicious trademark objection is serious, and trademark objection has become a legal means of unfair competition in trademarks.
It is understood that before the Trademark Law was amended in 21, trademark objection cases were reviewed by the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce, and a final ruling was made. According to the requirements of the Agreement on Trade-related Intellectual Property Rights (TRIPs Agreement), the current Trademark Law, which was revised in 21, added the judicial relief procedure on the basis of retaining the objection review procedure. In other words, at present, trademark objections are first reviewed and ruled by the Trademark Office. If you are dissatisfied with the ruling of the Trademark Office, you can apply to the Trademark Review and Adjudication Board for review. If you are not satisfied with the objection review decision, you can bring a lawsuit, and the lawsuit can also go through the first and second trials.
Zhang Weijun, an associate professor at the Intellectual Property College of Tongji University, said that the procedure of the four-level trial of the administrative second instance and the judicial second instance is too complicated, and the subjects and reasons for filing trademark objections are too broad, which leads to the long trial period of trademark objection cases, which seriously affects the timely registration of trademarks by trademark applicants. Some commercial competitors take advantage of the defects of this system to raise objections and extend the approval time in order to delay the applicant's trademark registration, or to use the same or similar trademarks as others for as long as possible and avoid taking possible tort liability. There are even some people who maliciously file trademark objections and demand high fees from the objector on the condition of canceling the objection procedure.
relevant data show that the average life span of Chinese enterprises is only about 3 years at present, and the longest trademark objection period (including objection review and administrative litigation) may be as high as 7 years. The trademarks legally held by some enterprises have been in an unstable state for a long time, which has caused great trouble to the right holders and related stakeholders. Simplifying the trademark confirmation procedure and perfecting the trademark objection system have become an important task in the revision of the Trademark Law.
To this end, the new Trademark Law has re-established the trademark objection handling procedure to further improve the efficiency of trademark registration and better safeguard the legitimate rights and interests of the parties.
article 35 of the new trademark law stipulates that if an objection is raised to a trademark announced after preliminary examination and approval, the trademark office shall hear the objector and the objector state the facts and reasons. If the Trademark Office decides to approve the registration, it shall issue a trademark registration certificate and make an announcement. If the objector refuses to accept it, he may request the Trademark Review and Adjudication Board to declare the registered trademark invalid in accordance with the provisions of Articles 44 and 45 of this Law. If the trademark office decides not to register, and the objector refuses to accept it, it may apply to the Trademark Review and Adjudication Board for reexamination within 15 days from the date of receiving the notice. If the objector refuses to accept the decision of the Trademark Review and Adjudication Board, he may bring a suit in a people's court within 3 days from the date of receiving the notice. In this way, in the case that the Trademark Office rejects the trademark objection and grants the trademark registration, the review and litigation procedure of the trademark office's objection ruling can be omitted, and the trademark right can be established as soon as possible, and at the same time, the dissident's right to further relief can be guaranteed through the trademark invalidation procedure. ? Zhang Weijun said that this practice is consistent with the provisions of the TRIPs Agreement.
according to the provisions of article 62 quinquies of TRIPs agreement, administrative decisions made in the process of objection and cancellation between the parties shall be subject to judicial or quasi-judicial review, but in the case that the objection or administrative cancellation is not established, there is no obligation to provide judicial review for the decision, as long as the basis of the procedure can be dealt with in invalid litigation. ? That is to say, if the objection is not established, there is no need to provide an opportunity to review the administrative decision, as long as the basis for filing such procedures can be the reason for invalid procedures. ? Zhang Weijun said.
However, according to Zhou Xinyan, a trademark expert of Unitalen Intellectual Property Agency Co., Ltd., the new trademark objection system is a double-edged sword, which is slightly biased and will be cut to the real owner. Because the second paragraph of Article 47 of the new Trademark Law stipulates: A decision or ruling declaring a registered trademark invalid has no retrospective effect on the judgments and rulings of trademark infringement cases made and executed by the people's court before the invalidation, the conciliation statement, the decision on handling trademark infringement cases made and executed by the administrative department for industry and commerce, and the trademark transfer or use license contract that has been performed. ? In this way, during the trademark invalidation procedure, even if the registered trademark after being challenged actually violates the provisions of the new Trademark Law, the malicious trademark registrant can still obtain illegitimate interests by claiming the exclusive right to use the trademark, thus damaging the legitimate rights and interests of the dissenter.