According to the principle of good faith, although the registered trademark has been stopped for three consecutive years, if the registrant resumes commercial use in good faith before others file an application for cancellation, others cannot cancel it. However, not all uses can restore the validity of the trademark registration. In order to prevent registrants from using their trademarks symbolically to maintain the trademark registration, and to protect the legitimate interests of trademark users, the trademark laws of Germany, Japan, the United Kingdom, France, Italy and other countries, as well as my country's Taiwan region, recognize the validity of the registration of resurrected trademarks. At the same time, it is stipulated that if the use is started after learning that another person will file a revocation action and within three months before the revocation action is filed, it will not be considered. my country's new Trademark Law and the Regulations only require that the use of the registered effect of a revived trademark must be before the applicant files an application for cancellation, and there are no other restrictions. The author believes that this provision in the above-mentioned countries and regions is simply to prevent trademark registrants from using symbolic uses to circumvent the law and harm the legitimate interests of trademark users. The three-month time standard is just to provide law enforcers with a basis for judgment. However, the three-month period is not a scientific and unchangeable rule, and the requirement of "within three months before filing an application for revocation" after "knowing that others are about to submit an application for revocation" is more complicated at the operational level. It is difficult to provide evidence. Not easy. Therefore, there is no need for our country to copy the above regulations of other countries. As long as we accurately grasp the legislative purpose of reviving trademark registration validity through use, grasp the core that only true commercial use can revive the trademark registration validity, and strictly adhere to the limit of use before the cancellation application is filed, the legislative purpose of this system can be fully achieved.
However, my country has different understandings of this in theory and practice. Mr. Kong Xiangjun believes: “Although there was a fact of non-use for three consecutive years, in the cancellation procedure (including administrative procedures and litigation procedures involving cancellation), the reason for cancellation of non-use for three consecutive years has disappeared, and the trademark has had actual effects. , the application of the provisions of Article 44, Item 4 of the (original) "Trademark Law" has lost its factual basis (change of circumstances)"
"If the trademark registrant has actually used the trademark, it is equivalent to having changed it. "We must forget the past and be lenient, otherwise we will be in the position of canceling for the sake of cancellation or intentionally punishing the trademark registrant. This is a mechanical and rigid approach that is unfair to the rights holder and is not consistent with common sense." Mr. Kong’s view is hardly sound. From a procedural perspective, it is obviously illegal and contrary to procedural justice to overturn the Trademark Review and Adjudication Board's ruling based on newly generated evidence after the administrative proceedings. From an entity perspective, the three-year non-use cancellation system involves not only the interests of the registered trademark owner, but also the interests of the applicant, and the balance of interests between the two must be considered. Using "change of circumstances" to justify non-lawful adjudication is a misinterpretation of the principle of "change of circumstances". The legislative purpose of the three-year non-use revocation system is not primarily to urge registrants to use registered trademarks, but to clear dead trademarks from the register and prevent registrants from using dead registered trademarks to attack competitors. Whether considering the principle of good faith or maintaining the predictability of the law, the use that can revive the effect of a registered trademark can only be used before the application for cancellation is filed. This provision cannot be "flexible" or "adaptable."
The new Trademark Law does not provide comprehensive provisions on the forms of use that maintain the validity of trademark registration. For example, trademarks used in commercial activities are often different from registered and approved trademarks. This is not considered a registered trademark. Use? If all goods with a registered trademark are for export, do they meet the requirements for trademark use in China? These issues are not only of interest to the trademark registrant, but also to economic development, especially the development of foreign trade. As a secondary law, it should reflect the requirements of primary social life, and the regulations on the use of trademarks should conform to the actual situation of trademark use in commercial activities. It is recommended to confirm through judicial interpretation that in order to maintain trademark registration, if the trademark logo actually used is different from the one approved for registration, but the identity of the trademark is not changed, it will be regarded as use of a registered trademark; if a registered trademark is used on export goods, it will be regarded as registration. Use of Trademarks in China.
The three-year non-use trademark cancellation system should consider coordination with the relevant systems of the Trademark Law. If we recognize that the registered trademark rights that have not been used for three years have expired, then the opponent in the opposition procedure, the respondent in the invalidation procedure, and the defendant in the infringement lawsuit (hereinafter referred to as the parties) can request the opponent, invalidation If the applicant and the plaintiff in the infringement lawsuit provide evidence of the use of the registered trademark in the three years before the objection, invalidation application and infringement lawsuit, that is, the registered trademark can be defended if it has not been used for three years, the administrative director If the agency and the people's court confirm this fact, they should reject the objection application, invalidation application and infringement claim, and refuse to grant relief. The European Trademark Regulations, German Trademark Law, and British Trademark Law all have clear provisions on this. Articles 56 and 142 of the "Revised Draft of the Trademark Law" issued by the my country Trademark Office on April 18, 2006 also made provisions that are basically consistent with the above-mentioned national trademark laws. Unfortunately, this provision has not been supported by the academic and judicial circles. Responded positively, and future manuscripts did not retain this reasonable and extremely valuable provision.
Confirming the party’s right of non-use defense in opposition and invalidation procedures not only has sufficient theoretical basis, but also maintains logical consistency with the three-year non-use revocation system, and is conducive to the integration of various systems of the Trademark Law. from theory to logic. It is recommended that judicial interpretation be adopted to recognize the party’s right of non-use defense. In the case where the party raises a defense, if the opponent or invalid applicant cannot provide evidence of actual use and has no legitimate reason for non-use, the administrative department and the court should reject it. Objection and invalid application. Although Article 64 of the new Trademark Law stipulates the right of non-use defense of the accused infringer, the theoretical basis revealed in this article is that there will be no compensation without loss, rather than that a registered trademark that has not been used for three years should no longer be protected. . Moreover, the law only stipulates that the alleged infringer is not liable for compensation, which means that the court can order him to stop the infringement. This is far from the idea that a registered trademark that has not been used for three years should no longer be protected by law. It is recommended that Article 64 of the Trademark Law be reformed through judicial interpretation, so that the legal effect of the accused infringer’s successful defense will be revised to not assuming liability for infringement.
Some people may say that the party concerned can apply to cancel the registered trademark in accordance with Article 49 of the new Trademark Law. Therefore, there is no need to grant it the right of non-use defense. Of course, the party concerned can apply to cancel the registration of the trademark, but this cannot be a reason to deny the right of non-use of defense, because giving the party the right of non-use of defense is more convenient for the party, can better protect his own interests, and can prevent The embarrassment and trouble caused by the cancellation of a registered trademark after the registration application or invalidation application is rejected or is found to be infringing. Such embarrassments and troubles have arisen in judicial practice.