What is the obvious difference between trademark invalidation and cancellation? How to distinguish between trademark invalidity and cancellation? I will share with you the differences between trademark invalidation and cancellation. Welcome to read! What is the revocation and invalidation of trademark rights?

The revocation of trademark rights refers to the cancellation of the trademark registration by the trademark authority when the trademark rights lose the basis for continued protection due to events after the creation of the trademark rights. Decide. There is no defect in the acquisition of trademark rights, and the revoked trademark rights are valid until they are revoked. Reasons for cancellation are usually caused by non-use of the trademark or irregular use of the trademark.

The invalidity of a trademark right means that the trademark authority declares that the trademark right has no legal effect from the beginning due to defects in the acquisition of the trademark right. The difference between revocation and invalidation of trademark rights

There are the following main differences between revocation and invalidation of trademark rights:

***-*** The reasons are different

According to the provisions of Articles 44 and 45 of my country’s Trademark Law, reasons for cancellation include changing the registered trademark or trademark registration matters on your own; transferring the registered trademark on your own; ceasing to use it for three consecutive years; the goods using the registered trademark are shoddy, Substantially good quality goods, deceiving consumers.

According to Article 41 of my country’s Trademark Law, the reasons for invalidating trademark rights can be divided into three categories:

First, the lack of absolute conditions for registration, that is, the use of the trademark is prohibited by law. The signs used must have distinctive features, Article 10 of the Trademark Law ***, Article 11 of the Trademark Law, and functional signs may not be used for three-dimensional trademarks *** Article 12 of the Trademark Law* **. No deceptive means are allowed*** Article 41, Paragraph 1 of the Trademark Law***;

Second, infringement of prior rights, that is, infringement of other people’s trademark rights that have previously applied for registration* **Article 28 of the Trademark Law*** and other prior civil rights***Article 31 of the Trademark Law***;

Third, the registrant violates honest industrial and commercial practices, including infringement Well-known trademark rights***Article 13 of the Trademark Law***, the agent or representative registers the trademark of the principal or represented person in his own name without authorization***Article 15 of the Trademark Law***, improper Use of geographical indications to mislead the public*** Article 16 of the Trademark Law***, preemptive registration of trademarks that have been previously used by others and have certain influence***Article 31 of the Trademark Law***, and acquisition by other unfair means Registration*** Article 41, Paragraph 1 of the Trademark Law***.

***The two *** time limits are different

You can apply for revocation of trademark rights if the cause of revocation occurs. Due to the uncertainty of the cause of revocation, there is no time limit for applying for revocation. .

According to Article 41 of the Trademark Law, the time limit for applying for a trademark invalidation declaration is divided into two situations:

First, there is no time limit. If the absolute conditions for trademark registration are lacking, the Trademark Office, ex officio or other units or individuals, may request the Trademark Review and Adjudication Board to declare the trademark invalid without time limit; for trademarks that have been registered for malicious infringement of the rights and interests of well-known trademarks, the owner of the well-known trademark shall apply to declare the trademark invalid. There is no time limit for trademark invalidity. The former is the need to protect the interests of the public, while the latter reflects the special protection of well-known trademarks and the severe punishment of malicious behavior.

Second, five years. Due to the autonomy of civil rights, only prior right holders or interested parties can request the Trademark Review and Adjudication Board to declare invalidity, and the Trademark Office may not declare it ex officio on the grounds of protecting prior rights. Moreover, prior rights are only private rights, and public welfare factors such as social relations and the stability of the market order must be taken into consideration when granting legal protection. A trademark that infringes upon prior rights has established market reputation through long-term use. If the trademark is declared invalid, it will destroy existing economic relationships. Therefore, the prior rights holder’s right to request invalidation must be exercised within a certain period of time. Most countries stipulate that the request should be filed within five years from the date of trademark registration. The same applies to the second and third paragraphs of Article 41 of my country’s Trademark Law.

***Three***The legal consequences are different

The revocable cause occurs after the trademark right is obtained, and the revoked trademark right becomes invalid after the revocation.

According to the provisions of Article 40 of the "Regulations for the Implementation of the Trademark Law", if a registered trademark is revoked, the Trademark Office shall make an announcement, and the exclusive right to use the registered trademark shall terminate from the date of the Trademark Office's cancellation decision.

The cause of invalidity exists when the trademark right is acquired, and the trademark right that is declared invalid is invalid from the beginning. According to the provisions of Article 36 of the "Regulations for the Implementation of the Trademark Law", if a registered trademark of *** is declared invalid and canceled in accordance with the provisions of Article 41 of the Trademark Law, the exclusive right to use the trademark shall be deemed to have ceased to exist from the beginning. Decisions or rulings regarding the invalidation of registered trademarks, judgments and rulings on trademark infringement cases made and executed by the People's Court before the invalidation was declared, decisions on handling trademark infringement cases made and executed by the industrial and commercial administration departments, and decisions that have been performed Trademark transfer or licensing contracts do not have retroactive effect; however, compensation shall be provided for losses caused to others due to the bad faith of the trademark registrant.

According to the provisions of Articles 44 and 45 of the Trademark Law, the reasons for revoking trademark rights include:

***-*** changes the registered trademark or trademark registration on his own initiative Matters

According to the provisions of Articles 22 and 23 of the Trademark Law, the exclusive right of a registered trademark is limited to the approved trademark*** pattern*** and the approved goods for use. Trademark registration Matters include the name, address, etc. of the registrant. If a registered trademark needs to change its logo, a new registration application must be submitted; if the name, address or other matters of the registrant need to be changed, a change application must be submitted. Therefore, when a trademark registrant uses a registered trademark, he is not allowed to change the approved registered trademark pattern and registered registration matters on his own. Otherwise, in accordance with Article 44, Item ***1*** and Article ***2 of the Trademark Law, The provisions of item *** are revoked.

Unlike my country’s Trademark Law, which lists the above-mentioned voluntary changes as revocable reasons, legislation in most other countries or regions stipulates that trademark rights can only be revoked if the use of a registered trademark leads to confusing or deceptive consequences. [1] Among them, Article 51-*** of the Trademark Law is the most clear, that is, “the trademark owner intentionally uses a trademark that is similar to the registered trademark on the approved goods or services, or The use of a registered trademark or a similar trademark on goods or services that are similar to the approved goods or services causes a misunderstanding of the quality of the goods or services, or confusion with goods or services related to the business of others." Anyone can make a revocation request. This article believes that my country's Trademark Law does not distinguish between "voluntary changes in behavior" and treats them as revocable grounds, which is obviously inappropriate. Trademark registration is static, but the market is dynamic. The registrant should be given the freedom to make appropriate changes according to market needs. Therefore, "not to be changed" does not mean that it must be "unchanged" in actual use. The registrant makes fonts for the registered trademark. Changes such as colors, colors, etc. that do not change the distinctive features should be allowed as long as they do not infringe the trademark rights of others. On the contrary, if you make changes on your own that are similar to others' registered trademarks and infringe on others' trademark rights, they should be revoked. Moreover, registered trademarks are equally protected by the law. If the registrant intentionally changes his earlier registered trademark to resemble a later registered trademark and infringes upon the rights of a later registered trademark, the earlier registered trademark may also be revoked.

***II*** Self-transfer of a registered trademark According to Article 39 of the Trademark Law, if a trademark registrant transfers a registered trademark, he shall sign a transfer agreement with the transferee and *** File an application with the Trademark Office. After the application for transfer of a registered trademark is approved, it will be announced by the Trademark Office, and the transferee will enjoy the exclusive right to use the trademark from the date of announcement. Although the trademark registrant can transfer the registered trademark according to his own will, he must go through the transfer registration procedures. Otherwise, not only the transferee will not be able to obtain the trademark rights, but also in accordance with the provisions of Article 44, Item ***3*** of the Trademark Law , the assignor’s trademark rights will be revoked.

The "self-transfer" in this item should be understood as transferring a registered trademark without completing the transfer registration procedures in accordance with the law. Trademark rights are private rights and can be freely transferred. It is obviously too harsh to revoke them just because the relevant procedures have not been completed in accordance with the law. Some national legislation stipulates that only when the transfer of a registered trademark leads to confusion, it will be a reason for revoking the trademark right.

For example, according to the provisions of Article 52-2*** of the Japanese Trademark Law, due to the transfer of trademark rights, "conflicting trademark rights" are enjoyed by different rights holders, and one of the trademark rights holders has Use of a trademark for the purpose of unfair competition and causing confusion in source between the goods or services of other trademark owners or their licensees, including exclusive and non-exclusive licensees, The trademark registration will be revoked. In our country, applications for transfer of registered trademarks that may cause misunderstanding, confusion or other adverse effects will not be approved [2]. If the trademark registrant transfers such a registered trademark on his own, this may constitute grounds for revocation. For self-transfers that will not cause misunderstanding or confusion, it should not be used as a reason for revocation. It is enough to order the transfer procedures to be completed within a time limit.

***三*** Stopped use for three consecutive years. The life of a trademark lies in its use, not its registration. The reason why a trademark is protected is not the form of the trademark itself, but the goods or services it represents. If a registered trademark is not used for a long time, not only is there no need for protection, but it will also hinder others from using it. Therefore, the trademark laws of various countries stipulate that if a registered trademark has not been used for a certain period of time, the trademark can be revoked, and my country's Trademark Law is no exception. However, Article 44 of the Trademark Law, which stipulates that suspension of use of a registered trademark for three consecutive years as a reason for cancellation, also stipulates that the Trademark Office has the right to order correction within a time limit, is actually superfluous and should be deleted.

According to the second paragraph of Article 39 of the "Regulations for the Implementation of the Trademark Law", if a trademark registrant stops using its registered trademark for three consecutive years, anyone can apply to the Trademark Office to cancel the registered trademark. If the trademark registrant cannot provide evidence of use or the evidence is invalid without justifiable reasons, the Trademark Office will revoke its registered trademark. The so-called legitimate reasons refer to non-use or cessation of use of a registered trademark due to objective reasons beyond the control of the trademark registrant. According to Article 19, paragraph 1, of the Trade-Related Intellectual Property Rights Agreement: “If there are obstacles to the use of a trademark that are independent of the will of the trademark owner, such as import restrictions or *** the goods indicated by the trademark or other requirements for services, it should be recognized as a valid reason for 'non-use'. "The "Trademark Adjudication Standards" define "justifiable reasons" for non-use or cessation of use as "force majeure, *** policy restrictions, bankruptcy and liquidation. and other legitimate reasons that cannot be attributed to the trademark registrant." The above definition is relatively reasonable and scientific and can be absorbed when the Trademark Law is revised. In addition, according to the current provisions of Article 34, Paragraph 3 of the Trademark Law, for a trademark that is approved for registration after it is ruled that the objection cannot be established, the time for the trademark registration applicant to obtain the exclusive right to trademark shall be calculated from the expiration of the three-month period from the initial announcement. Therefore, a trademark registrant's failure to use its trademark during the opposition determination period should be deemed to have legitimate reasons.

***Four*** goods using registered trademarks are shoddily manufactured, passed off as good, and deceive consumers

Article 45 of the "Trademark Law" stipulates: "The use of registered trademarks, If its goods are shoddily manufactured, passed off as good quality, and deceive consumers, the industrial and commercial administration departments at all levels will order corrections within a time limit based on different circumstances, and may notify or impose penalties, or the Trademark Office may revoke their registered trademarks."

This article believes that the quality assurance function of trademarks is to ensure the identity of the quality of the goods, but not to ensure the high quality of the goods. If the trademark owner cannot maintain or improve the quality of the goods using the registered trademark, or if the goods are shoddy or shoddy, it will inevitably affect the public's evaluation and consumption choices, and the trademark will eventually be eliminated in the market competition. Trademark law does not stipulate quality standards for goods using registered trademarks, and there is no need to do so. The provisions of Article 45 of the "Trademark Law" are a misinterpretation of the quality assurance function of trademarks. Not only is it inconsistent with the private nature of trademark rights, but it also confuses the "Trademark Law" with the "Consumer Rights and Interests Protection Law" and the "Product Quality Law" function, it should be abolished.

In addition, my country’s Trademark Law lacks provisions for at least two grounds for revocation: first, loss of distinctive features. That is, after the trademark is registered, due to improper use or insufficient protection by the trademark owner, the registered trademark becomes a common name, graphic, model, or a mark that directly expresses quality and other characteristics of the goods, thereby losing its distinctive features. Second, improper use by the trademark registrant causes relevant consumers to misunderstand the quality and other characteristics of the product or its origin.

What is a trademark review?

Trademark review refers to a statutory procedure for re-examination by the Trademark Review and Adjudication Board in response to a request for review made by a party who is dissatisfied with the Trademark Office’s decision on trademark-related matters.

Types of trademark review:

1. Review where the party is dissatisfied with the Trademark Office’s rejection of the trademark registration application;

2. Review where the party is dissatisfied with the Trademark Office’s rejection of the registered trademark Review of the transfer application;

3. Reexamination of the party’s dissatisfaction with the Trademark Office’s refusal to renew the registered trademark application

4. Reexamination of the party’s dissatisfaction with the Trademark Office’s objection ruling;

5. Review of a party’s objection to the cancellation of a registered trademark by the Trademark Office;

6. Review of a party’s objection to the cancellation of an improperly registered trademark by the Trademark Office; What materials are required for trademark review

< p>1. "Trademark Agency Power of Attorney": If you entrust a trademark agency to act as an agent, you must provide a power of attorney stamped with the applicant's seal. 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 an agency is entrusted to apply for trademark reexamination, the agency will prepare it.

3. Reasons and evidence materials