Why are registered trademarks invalid? What are the reasons for invalidity? The editor has compiled the declaration of invalidity of trademark registration with everyone, for reference only!
Trademark Law Related Trademarks What are the reasons for invalid registration?
According to Article 41 of my country’s Trademark Law, the reasons for invalidity include:
(1) Lack of absolute requirements for trademark registration
According to the provisions of Article 41, Paragraph 1 of the Trademark Law, for a registered trademark that lacks the absolute conditions for registration, the Trademark Office can proactively declare invalidity ex officio, and anyone can request the Trademark Review and Adjudication Board to rule on declaring the registered trademark invalid. This provision is intended to protect public interests, public order and good customs, and should be retained. We can draw lessons from the provisions of Article 25 (1) of the 1993 "Details for the Implementation of the Trademark Law", which clearly defines "deceptive means" as "fabrication, concealing the truth or forging application documents and related documents for registration". For example, a natural person forges business qualification documents to apply for a registered trademark.
(2) Infringement of prior trademark rights and other prior rights
1. Infringement of other people’s previously applied for registered trademark rights. That is, as stipulated in Article 43, Paragraph 3 of the Trademark Law and Article 29 of the Implementing Regulations of the Trademark Law, a registered trademark and a trademark previously applied for registration by others constitute identical or similar trademarks used on the same or similar goods. In Article 29 of the "Regulations", the legislative language of "trademark registrants who have previously applied for registration" and "registered trademarks" excludes "trademarks that have been applied for earlier but are still in the rejection review or opposition process and have not been registered" from being able to file a dispute. is outside the scope and is not conducive to the protection of previously applied trademark rights. ?This revision of the Trademark Law should give the owner of a previously applied trademark the procedural right to raise a dispute. For cases involving disputes based on previously applied trademark rights, substantive hearings should be conducted after the final results of rejection or opposition cases are reached. Otherwise, there will be a situation where the trademark applied for earlier will be rejected or the preliminary approval will be revoked, and the trademark applied for later and registered will be declared invalid, which is not conducive to the protection of later applicants.
2. Infringement of other people’s prior rights other than trademark rights. That is to say, as stipulated in the first paragraph of Article 31 of the Trademark Law, an application for registration of a trademark shall not infringe upon the prior rights enjoyed by others. The identification of prior rights (such as copyright) and the determination of infringement of prior rights are beyond the professional scope of trademark administrative adjudication agencies. Moreover, in the case of judicial review of administrative decisions, the same conflict of rights may require "three trials (administrative first trial, two judicial trials) or four trials (if it goes through the objection procedure)" before it can be finalized, resulting in a shortage of administrative and judicial resources. waste. Amending the Trademark Law may consider giving priority to judicial procedures for applications for registered trademarks that conflict with other prior rights. The following provisions may be made: If an application for a registered trademark infringes upon the prior rights of others and is determined by a court's effective judgment, the Trademark Office shall reject the application or declare Registration is invalid. The Trademark Office's rejection and declaration of invalidity based on this is to execute the effective judgment without going through the invalidation declaration procedure, and the applicant or registrant is not allowed to file a lawsuit.
(3) Violation of honest industrial and commercial practices
Any person who applies for a registered trademark violates honest industrial and commercial practices and infringes upon the interests of others under competition law, which constitutes grounds for invalidation of trademark rights. According to the second paragraph of Article 41 of my country’s Trademark Law, situations in which registered trademarks violate the principle of good faith include:
1. Infringement of the rights and interests of well-known trademarks. That is, there are two situations stipulated in Article 13 of the Trademark Law: the trademark applied for registration for the same or similar goods is a copy, imitation or translation of someone else’s well-known trademark that has not been registered in China, which is likely to cause confusion; the trademark is not identical or similar The trademark applied for registration for a product is a copy, imitation or translation of someone else's well-known trademark that has been registered in China, misleading the public and causing possible damage to the interests of the registrant of the well-known trademark. Copying, imitating or translating this article is just a means and can easily lead to confusion and mislead the public. It is the result that the interests of the well-known trademark registrant may be harmed. As long as such a result occurs, it should be stopped, regardless of the means. This result is not due to the means, but to the fact that the trademark applied for registration is identical or similar to the well-known trademark, and it may be the same or similar even if the above-mentioned means are not adopted. Moreover, the means of "copying, imitating, and translating" themselves are enough to show that the registration is subjectively malicious.
However, Paragraph 2 of Article 41 stipulates that the owner of a well-known trademark is not subject to a five-year time limit for registration in bad faith. When the owner of a well-known trademark raises a dispute based on this provision, he must not only prove that the registrant of the disputed trademark has adopted Article 13 The prescribed means also require proof of the registrant's subjective malice, which is obviously unreasonable. Therefore, this article recommends deleting the description of the method and modifying it to state that the trademark applied for registration is the same as or similar to a well-known trademark that has not been (already) registered in China by others.
2. Agents or representatives rush to register trademarks. That is, Article 15 of the Trademark Law stipulates that “without authorization, an agent or representative registers the trademark of the principal or represented person in his or her own name”. There are three obvious differences between the provisions of our country's laws and those of the Paris Convention: First, the terms are different. The Paris Convention uses the concept of "trademark owner", but our country's law corresponds to "principal or represented person". This term has caused undue ambiguity in practice. ?Second, the protection methods are different. Our country's law only stipulates that if the principal or represented person raises an objection, registration shall not be granted and use shall be prohibited. The Paris Convention not only gives the principal or represented person the right to object and cancel registration, but also can If permitted by the laws of the country, request the transfer of the registration to yourself. Third, there are no exclusions. The "Paris Convention" stipulates that except where the agent or representative can prove that his or her behavior is legitimate, there is no similar provision in our country's laws. Therefore, it can be improved by referring to the provisions of the Paris Public Security Bureau.
3. Misleading the public because it contains geographical indications. That is, as stipulated in Article 16, Paragraph 1 of the Trademark Law, "the trademark contains a geographical indication of a product, but the product does not originate from the area indicated by the mark, misleading the public." This provision plays an important role in protecting geographical indications that have not been registered as collective trademarks or certification marks and should be retained. For geographical indications that have been registered as collective trademarks or certification marks, the provisions of Article 28 of the Trademark Law can be directly applied for protection.
4. Preemptive registration of trademarks. That is, what is stipulated in the second paragraph of Article 31 of the Trademark Law: Preemptively registering a trademark that is already used by others and has a certain influence by others through unfair means. The so-called certain influence means that it is known to the relevant public within a specific geographical scope. Trademarks with certain influence include both trademarks that have never been registered and trademarks that have not been renewed but still have certain influence. Compared with Articles 13 and 15 of the Trademark Law, the owner of such a trademark (the prior user) can only prohibit others from applying for registration, but does not have the right to prohibit others from using it. Moreover, before the trademark is declared invalid, rush injection also has the right to prohibit the real trademark owner from using it, which is obviously extremely detrimental to the protection of the trademark owner. In order to fully protect the interests of the trademark owner, it should be allowed to continue to use it (without being disturbed by the alleged infringement), prohibit the use of the squatter (stop the unfair competition of the squatter) and request transfer registration (the trademark right belongs to the real trademark owner). rights holder).
5. Obtain registration by other improper means. According to the interpretation of the "Trademark Adjudication Standards", "other unfair registration behaviors" in Article 41, paragraph 1, of the "Trademark Law" refers to behaviors that are registered in bad faith for the purpose of unfair competition and seeking illegal benefits. However, the existing differences in the practice community regarding this interpretation should be revised and improved to eliminate ambiguities.
Legal Consequences of Invalid Trademark Rights
Once a registered trademark is declared invalid and revoked, the trademark right is deemed to have ceased to exist from the beginning. Decisions or rulings on the cancellation of registered trademarks, judgments and rulings on trademark infringement cases made and executed by the People's Court before cancellation, decisions on handling trademark infringement cases made and executed by the industrial and commercial administration departments, and trademark transfers that have been executed or use license contract, does not have retroactive effect; however, losses caused to others due to the bad faith of the trademark registrant shall be compensated.
Procedures for applying for invalidation of trademark rights
Corresponding to different invalidation situations of trademark rights, the procedures for invalidating trademark rights are also different.
(1) There are two procedures for invalidating trademark rights when a registered trademark is obviously defective:
1. The Trademark Office can proactively cancel the registered trademark ex officio;
< p>2. Other units or individuals may request the Trademark Review and Adjudication Board to rule on revoking the registered trademark.(2) For improperly registered trademarks, the trademark owner or interested party may request the Trademark Review and Adjudication Board to revoke the registered trademark within five years from the date of trademark registration.
For cases registered in bad faith, the owner of a well-known trademark is not subject to the five-year time limit.
(3) For disputes over registered trademarks, the owner of the previously registered trademark may apply to the Trademark Review and Adjudication Board for a ruling to cancel the later-registered trademark within five years from the date of approval of registration of the disputed trademark.
For a trademark that has been opposed and adjudicated before the registration is approved, no application can be made to revoke the registered trademark based on the same facts and reasons.
After the Trademark Review and Adjudication Board makes a ruling to maintain or cancel a registered trademark, it shall notify the relevant parties in writing. If the party concerned is dissatisfied with the ruling of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within 30 days from the date of receipt of the notice. The people's court shall notify the other party in the trademark adjudication procedure to participate in the litigation as a third party.
What to pay attention to during trademark review
Trademark review refers to a reexamination request made by the Trademark Review and Adjudication Board in response to the party's dissatisfaction with the Trademark Office's decision on trademark-related matters. Legal procedures for review.
First, the types of trademark review:
1. Review where the party is dissatisfied with the Trademark Office’s rejection of the trademark registration application;
2. The party’s rejection by the Trademark Office Review of an application for transfer of a registered trademark that is dissatisfied;
3. An application by a party that is dissatisfied with the Trademark Office’s rejection of an application for renewal of a registered trademark;
4. Review by a party that is dissatisfied with the objection ruling of the Trademark Office;
5. Review of the party’s objection to the cancellation of the registered trademark by the Trademark Office;
6. Review of the party’s objection to the cancellation of the registered trademark by the Trademark Office;
Second , Reexamination time
The applicant may request a reexamination from the Trademark Review and Adjudication Board within fifteen days from the date of receipt of the rejection notice, ruling notice or revocation notice. If there are special reasons, you can apply for an extension before expiration. The extension time is thirty days, but you need to pay an extension request fee.
Third, documents and materials that need to be provided:
1. "Trademark Agency Power of Attorney": If you entrust a trademark agency to act as an agent, you must provide an authorization stamped with the applicant's seal. Book. Applicants from outside mainland China who want to apply for trademark review in China must entrust a trademark agency to do so.
2. Various types of reexamination applications: If you entrust an agency to apply for trademark review, the agency will prepare it.
3. Reasons and evidentiary materials
IV. Decision on review
The Trademark Review and Adjudication Board will decide whether to approve registration or deny registration upon review of rejection or objection. The final decision on registration shall be made and the relevant parties shall be notified in writing.
The Trademark Review and Adjudication Board will make a final decision to maintain or revoke the trademark for other reviews and notify the relevant parties in writing.
The above is the declaration of invalidity of trademark registration provided by the editor. I hope it can be helpful to everyone.
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