Although formally non-implementing entities appear to comply with the provisions of the trademark registration system, in essence they are clearly inconsistent with the legislative intent of the Trademark Law

Jiangsu Satellite TV? If You Are the One? TV Program Trademark The infringement case has triggered people's thinking on the issue of non-enforcement entities of trademark law. How to understand the non-implementing subject issue in trademark law theory, clarify this issue and accurately apply the rules in judicial practice are actually necessary to maintain a healthy market economy environment and promote the honest operation of market entities.

The so-called non-implementing entity means that the main purpose of the applicant's trademark registration is not for substantive production and operation, but to sell it at a price after registration, or to wait for other market entities to use it in good faith and invest heavily. , obtaining high returns on the condition that you have obtained the right to use the trademark. The basic operating procedures are: first, search for buzzwords or hot words in society or the market, and register trademarks for multiple goods or service categories; second, resell registration applications or registered trademarks; third, if there is no suitable target, Pay close attention to market dynamics. If someone uses it, you will release it to fish according to the situation. When the conditions are mature, you will often threaten to file a trademark infringement lawsuit to obtain excess profits. It is worth noting that in order to avoid being identified as a non-implementing entity in future litigation, this type of entity will also engage in certain operations on a small scale. From a legal point of view, there is nothing wrong with the reasonable application of trademark registration rules. However, if preemptive registration, blackmail and other means are allowed to obtain huge profits, it will inevitably deviate from the original intention of trademark legislative protection.

As we all know, trademark law has two basic purposes: first, to indicate the source of goods or services by establishing a one-to-one correspondence between trademarks and goods or services, to avoid consumer confusion, and to protect consumer interests; Exclude counterfeiters in accordance with the law and ensure that high-quality products or services of market entities can only reach consumers, thereby protecting market entities’ honest operations and substantial investments. Here, the trademark law is unified in protecting consumer rights and interests and protecting market entities’ honest operations and investments. It is not difficult to find that the key conditions for being a qualified trademark subject lie in two points: good faith, that is, not aiming to abuse rights; honest operation and substantial investment. This is exactly the fundamental value of trademark protection.

Unfortunately, good legislative intentions may not always bring about ideal results. Although in order to prevent non-implementing entities from disrupting the normal business order in the trademark field, my country's Trademark Law has established relevant regulations for non-implementing entities in trademark registration, invalidation, cancellation and other procedures, the effect is not optimistic. Judging from my country's trademark registration practice, the success rate of trademark registration is roughly 50%, but the idle rate of registered trademarks is as high as 75%, which seriously deviates from the original intention of trademark protection to promote the development of the market economy, and has become a worldwide weird thing. Hard to see. Although there are many reasons involved, the abuse of rights by non-implementing entities makes it difficult for the law to protect the honest operations and substantial investments of well-intentioned persons, which is undoubtedly an important part of it. In fact, due to the lack of substantial investment in the registered products or services by non-implementing entities, it is difficult for the market to establish a corresponding connection between the trademark and the goods or services, and it is even more difficult to achieve the basic purpose of trademark law to avoid consumer confusion. Therefore, although in form, non-implementing entities appear to comply with the provisions of the trademark registration system, in essence they are clearly inconsistent with the legislative intent of the Trademark Law, and are harmful to the public interests and the overall economic and social innovation and development.

Fortunately, in order to encourage trademark use, activate trademark resources, and prevent unfair opportunistic use of registered trademarks, judicial authorities have gradually standardized the judicial handling of non-implementing entities in the practice of trademark infringement litigation, and have A series of refereeing ideas and specific rules have been established in many well-known cases such as "WeChat trademark application objection" and "Star Avenue trademark infringement". For example, the main criterion for determining the legal liability for trademark infringement of the actual user of the mark is whether the prior trademark applicant has suffered actual losses; if the registrant or transferee has no actual intention to use the trademark and only uses the registered trademark as a tool for claiming compensation, the trademark infringement liability may not be used. If the registered trademark has ceased to be used for three consecutive years as stipulated in the Trademark Law, the court may not support the claim for damages. In addition, the actual use of the mark by the actual user must also be comprehensively considered to reasonably determine the scope of protection of the prior trademark applicant.

In other words, trademark rights ultimately come from the use of the trademark holder. The scope of protection for a trademark should be proportional to the distinctiveness and market popularity of the trademark. If the trademark registrant does not actually put his registered trademark into use, his trademark rights will not be protected. If a trademark lacks distinctiveness and market visibility, judicial authorities should exercise strict control when considering similar goods or similar trademarks. The establishment of these adjudication rules is the result of judicial officials accurately grasping the spiritual essence of legal thinking and deepening their understanding of the law from the law on paper to the law in action. It is important for realizing the organic unity of legal effects and social effects, promoting the rational use of rights, and safeguarding the rights. A healthy market order has played a positive role.