How to identify malicious cybersquatting? How to determine that the so-called "malicious cybersquatting" is just a popular title? According to the provisions of Article 31 of the current Trademark Law, that is, "a trademark that has been used by others and has certain influence shall not be registered in advance by improper means". Therefore, "malicious cybersquatting" means that the applicant uses unreasonable or illegal means to apply for registration of a trademark that has been used by others but has not been registered in his own name. The elements that constitute "malicious cybersquatting" are: (1) The applicant seeks illegitimate interests, which is a subjective element. "Malicious cybersquatting" refers to the trademark that someone else has already used as his own trademark. This kind of behavior itself has encroached on the fruits of others' labor. If the registration is successful, it is equivalent to legal theft. More seriously, once the registration is successful, the applicant for "malicious cybersquatting" becomes the legal owner, that is, he will use the occupation right of his registered trademark to prohibit others from using his own trademark or use his right to dispose of it, and transfer or license the registrant to use the trademark at a high price. If these purposes cannot be achieved, they will file an infringement lawsuit or report to the administrative department for industry and commerce for compensation. The realistic question is, how to determine the establishment of this subjective element? It is impossible for us to go deep into the inner world of applicants to understand whether their subjective wishes are for illegitimate interests and can only be analyzed through phenomena. What phenomena can be analyzed? One is to see whether he uses it himself after successful registration, that is, on his own product, and whether this product is similar to or similar to the registrant's product; The second is whether to transfer or license the trademark to the registrant at a high price; The third is whether to directly sue the registrant for infringement and claim compensation. Through the analysis of these aspects, if the registered trademark of the "cybersquatting" applicant is not mainly for his own use, or even does not have his own product, and then transfers it at a high price or requests compensation from the cybersquatting person, we can accurately identify his subjective purpose, that is, to seek illegitimate interests. (2) the applicant has taken improper means, which belongs to the improper means of behavioral elements. It means that the applicant for trademark registration falsely fills in the relevant matters in the application for trademark registration and related materials provided in an unreasonable or illegal way, and the Trademark Office of the State Administration for Industry and Commerce cannot examine the authenticity of the application and related materials. Therefore, only in the objection procedure or in the subsequent cancellation of the trademark application by the registrant can improper means be identified, and the registrant will prove that the applicant has taken improper means. What are the improper means? 1. The applicant takes advantage of the relationship with others. Small and medium-sized enterprises are the easiest objects to register. Because small and medium-sized enterprises often don't register their trademarks before launching their products to the market. More often, they registered their trademarks after their products had a certain influence. 2. Use the background that you have worked with others. As partners, they know the purpose of registered trademarks best. Some secretly register the partner's trademark as their own in the process of cooperation, and some register the partner's trademark first after the cooperation is over. 3. Other people in the same area who know the inside story. Take advantage of its different conditions and advantages, such as managers, legal advisers, journalists, trademark agents, etc. In the process of news interview or management, they can learn about the use of the operator's trademark, foresee the benefits brought by registered trademarks and register first. The above unfair means are similar, all copying trademarks used by others but not applied for registration before, and none of them have condensed their wisdom and creativity on the trademarks they applied for registration. In essence, they use deception to cover up the illegal or unreasonable nature in a legal form, which violates the principle of "good faith". (3) Successful registration, whether objective or factual, will eventually lead to "malicious cybersquatting". If in the objection procedure, the registrant finds that his trademark has been applied by others, he can raise an objection, which leads to his unsuccessful registration. Of course, there is no "malicious cybersquatting". In fact, in practice, a large number of operators do not know that their trademarks have been applied for registration by others. Even if there is a three-month announcement period in the program, not all operators can see this announcement in time. Often, the registered trademark originally belonging to oneself is registered by others only after the registered registered registered by the cybersquatter is successful. Then, to constitute this requirement, there are at least the following factors: 1, whether the registered trademark has certain influence. Usually no one will rush to register an influential trademark. "Having a certain influence" refers to a significant sign recognized by a certain group of people in a certain area. In fact, once a commodity or service project is put on the market, the influence of a trademark has begun to appear in the public's mind due to the role of advertising and the process of trading, and its influence has reached a certain degree, such as a certain geographical scope and a certain population range. How to identify "have a certain impact"? The author thinks that we can make a comprehensive investigation from the aspects of advertising, sales, market share, consumer awareness and regional radiation. 2. Whether it is a trademark that has been used and is being used. A registered trademark should be regarded as a trademark that the registrant has used and is using, that is, it emphasizes the continuous use of the trademark. Where a registered trademark is used by a registrant but stopped being used midway, it shall not be deemed as "registered". A simple way to measure whether a trademark is continuously used is to see whether its goods are continuously put on the market. Of course, the use of trademarks is later than the registration of cybersquatters, so there is no problem of cybersquatting. This time point is based on the date when the applicant filed an application with the Trademark Office. To sum up, whether a trademark constitutes "malicious cybersquatting" must start with its constituent elements. Only when the above elements are met can it be preliminarily determined that it constitutes "malicious cybersquatting". Of course, the final determination must be supported by a lot of evidence. Malicious cybersquatting has constituted an illegal and criminal act, because it is likely to cause malicious competition in shopping malls, which is not conducive to the normal development of the economy. At the same time, malicious registered trademarks used by others can be regarded as infringement, which violates China's tort law. The injured party may protect its trademark through court proceedings or register the trademark in the administrative department for industry and commerce.