But behind the glamorous figures, there is a cold fact: According to the authoritative data of China National Intellectual Property Administration 20 13, 53% of the trademarks in Chinese mainland are idle, but a large number of small and medium-sized enterprises have no trademarks and are facing various legal risks.
It is understood that the main reasons why many trademarks are idle are as follows: First, well-known enterprises shelve all kinds of trademarks or defense registration for brand protection; Second, enterprises often ignore the handling of trademarks in the process of reorganization, merger and bankruptcy, resulting in many trademarks being forgotten; Third, after the successful registration of the trademark, after the market test, the enterprise was not optimistic about the product prospect of the brand, so the trademark was shelved and became an idle trademark.
The value of a trademark lies in its use. If a registered trademark is not used for three consecutive years, it will be shelved, which will not only make the registered trademark worthless and fail to play its due role, but also affect others' application for registration and use of the same or similar trademark, so corresponding legal measures are needed to regulate it.
In this regard, Article 44 of the original Trademark Law stipulates that if a registered trademark is not used for three consecutive years without justifiable reasons, the Trademark Office may order it to be corrected or revoked within a time limit. The requirements of the new trademark law are stricter and have been eliminated? Order correction within a time limit? The provisions of the. Article 49 of the new Trademark Law stipulates that any unit or individual may apply to the Trademark Office for cancellation if a registered trademark becomes the common name of the goods it has approved for use or is not used for three consecutive years without justifiable reasons. The Trademark Office shall make a decision within nine months from the date of receiving the application. There are special circumstances that need to be extended, which can be extended for three months with the approval of the administrative department for industry and commerce of the State Council. ? Does this mean the future? Sleep brand? It will be less and less, and it can also reduce the situation of malicious registration to a certain extent. ? Experts from Fan Chao Intellectual Property Office believe that the purpose of this legislative provision is to encourage the use of trademarks, so as to promote fair competition, and at the same time, to clean up unused trademarks in the trademark register, remove obstacles for others to use, and avoid the rights conflict and resource monopoly caused by the proliferation of registration. Moreover, the system also actively creates a public domain mechanism on trademarks, so that unused trademark resources after registration can return to the public domain and be used and shared fairly by the industry.
Except for revocation? Sleep? In addition to trademarks, the new trademark law also limits damages for infringement of the rights of registered trademarks that are not actually used. Article 64 of the Law stipulates that if the exclusive right holder of a registered trademark claims compensation and the accused infringer raises a defense on the grounds that the exclusive right holder of a registered trademark has not used the registered trademark, the people's court may require the exclusive right holder of a registered trademark to provide evidence of his actual use of the registered trademark in the previous three years. If the exclusive right holder of a registered trademark cannot prove that the registered trademark has been actually used in the first three years, nor can he prove that he has suffered other losses due to infringement, the accused infringer shall not be liable for compensation. ?
Experts said that the Supreme People's Court made a similar suggestion in 2009: properly handle the relationship between the actual use of registered trademarks and civil liability, so that civil liability is conducive to encouraging the use of trademarks, activating trademark resources, and preventing registered trademarks from being used unfairly and opportunistically. Where the registered trademark requested for protection is not actually put into commercial use, the fact that it was not actually used may be considered as appropriate when determining the liability for compensation. Except for the reasonable expenses arising from rights protection, if there is no actual loss or other damage, compensation will generally not be determined according to the profits of the accused infringer; If the registered trademark specified in the Trademark Law has been discontinued for three consecutive years, the claim for damages may not be supported. ? Obviously, the new trademark law has absorbed this opinion.
However, some experts believe that for defensive trademarks registered by enterprises, if? Just walk away? Will bring unexpected losses to the enterprise and can't stop the trademark? Dilution and confusion? , is not conducive to maintaining fair competition in the market order. So? Revocation? We should focus on speculative behaviors such as malicious cybersquatting, and treat the revocation of defensive trademarks cautiously and treat them differently.