Trademark invalidity and trademark revocation are two concepts. Trademark invalidity means that the trademark does not have the effect of a trademark from the beginning. This is usually due to the trademark violating the prohibitive provisions of the trademark law or using deception at the beginning of registration. If a trademark is obtained through unfair means, the trademark will be deemed invalid. If a trademark is declared invalid, the trademark will not be protected by law from the date of application, and the trademark will have no legal effect. Trademark cancellation refers to the invalidation of an originally valid registered trademark due to improper use or expiration of the trademark use period. Trademark invalidity is caused by reasons at the time of registration, while trademark cancellation is usually caused by subsequent use.

There are the following main differences between trademark right cancellation and invalidation:

Different reasons

According to the provisions of Articles 44 and 45 of my country’s Trademark Law, cancellation Reasons include changing the registered trademark or trademark registration matters on one's own; transferring the registered trademark on one's own; stopping using it for three consecutive years; goods using the registered trademark are shoddily manufactured, passed off as inferior, and deceived consumers.

According to Article 41 of my country’s Trademark Law, the reasons for the invalidation of 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. A mark (Article 10 of the Trademark Law) must have distinctive features (Article 11 of the Trademark Law). Three-dimensional trademarks must not use functional signs (Article 12 of the Trademark Law) and must not be deceptive (Article 12 of the Trademark Law). 》Article 41(1));

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 (Trademark Law) Article 31 of the Trademark Law);

Thirdly, the registrant violates honest industrial and commercial practices, including infringement of the rights and interests of well-known trademarks (Article 13 of the Trademark Law), and the agent or representative registers the trademark in his own name without authorization. The trademark of an agent or represented person (Article 15 of the Trademark Law), the improper use of a geographical indication to mislead the public (Article 16 of the Trademark Law), the preemptive registration of a trademark that has been previously used by others and has certain influence (Article 16 of the Trademark Law) Article 31), obtaining registration by other unfair means (Article 41, paragraph 1, of the Trademark Law.

The time limit is different

You can apply for revocation of the trademark right if there are reasons for revocation, because Due to the uncertainty of the cause of revocation, it is impossible to set a time limit for applying for revocation. According to Article 41 of the Trademark Law, the time limit for applying for a trademark invalidation is divided into two situations:

First, no. Time limit. If the absolute conditions for trademark registration are lacking, the Trademark Office 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 maliciously infringed on the rights and interests of well-known trademarks and been registered, the owner of the well-known trademark must apply There is no time limit for declaring the trademark invalid. The former is the need to protect the interests of the public, and 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 rights holders or interested parties can request the Trademark Review and Adjudication Board to declare invalidity, and the Trademark Office cannot declare it ex officio on the grounds of protecting prior rights. Moreover, prior rights are only one type. When granting legal protection to private rights, public welfare factors such as social relations and the stability of the market order must be taken into consideration. A trademark that infringes upon prior rights has established market reputation after long-term use. If the trademark is declared invalid, it will destroy existing economic relations. Therefore, the prior right 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. .

The legal consequences are different

The revocable cause occurs after the trademark right is acquired, and the canceled trademark right becomes invalid according to the provisions of Article 40 of the "Trademark Law Implementation Regulations". , if a registered trademark is revoked, it shall be announced by the Trademark Office, and the exclusive right to use the registered trademark shall be terminated from the date of the Trademark Office’s cancellation decision.

The invalidity reason exists when the trademark right is acquired, and it is declared invalid. The trademark right 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 is declared invalid (cancelled) 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.

Can a trademark be registered again after it is invalid?

It depends on what caused the trademark invalidity. If the trademark is invalid because the trademark has not been renewed during the renewal period, or If a trademark is revoked because it has not been used for three years, the trademark can be re-registered, but the re-registration may not be successful because the trademark is likely to encounter obstacles from identical or similar trademarks.

So, a trademark is not done after it is successfully registered, it requires subsequent management. It is recommended that enterprises registering trademarks find a professional trademark agency for subsequent trademark management or consultation on situations that should be paid attention to, which can avoid many problems.