Article 50 of the Trademark Law stipulates that if a registered trademark is revoked, declared invalid or will not be renewed upon expiration, the Trademark Office shall not approve the application for trademark registration of the same or similar trademark within 1 year from the date of revocation, invalidation or cancellation. That is to say, the "isolation period" of 1 year is set for the revoked or cancelled trademarks, just like the isolation period is set during the epidemic period to prevent the spread of the virus epidemic, and the isolation period is set after the registered trademarks are revoked or cancelled, so as to avoid the possibility of confusion and misunderstanding caused by the coexistence of the same or similar commodities in the market.
1 year "isolation period" application exception:
(1) The provisions of Article 50 shall not apply to a registered trademark that has been revoked because it has not been used for three consecutive years.
For the above legislative purposes, if a registered trademark is cancelled or unused for less than three years 1 year, the provisions of Article 50 of the Trademark Law shall apply to the application for trademark registration of the same similar trademark.
(2) Article 50 does not apply to a trademark declared invalid due to hoarding or malicious cybersquatting.
For a registered trademark, especially a registered trademark that has been declared invalid for less than 1 year due to hoarding or malicious cybersquatting, it is against the legislative purpose to apply Article 50 of the Trademark Law to disapprove the application for registration of the same or similar trademark by the prior obligee.
In practice, the prior obligee declared the hoarding or malicious registered trademark invalid, and at the same time, in order to safeguard their legitimate rights and interests, filed a trademark registration application for their own trademarks. According to the existing review standards, this will lead to a series of adverse consequences:
First, a maliciously registered trademark should not be approved for registration. After being declared invalid, its effect is also invalid from the beginning, and its prior use is also illegal, so it is difficult to produce certain effect on other people's trademarks.
Second, the prior obligee can't judge when his trademark registration application may be authorized, which will lead him to keep filing trademark registration applications in order to safeguard his legal rights, which will only increase the burden of the prior obligee.
Third, according to the existing review standards, it is very likely that the prior application of the prior obligee will be rejected, while other subjects will apply for approval and registration later, thus triggering a series of subsequent trademark ownership disputes.
Fourth, if the existing review standards are implemented, a large number of review cases will face the consequences of losing in the subsequent administrative litigation.
Fifth, the 1 year isolation period is usually not considered in judicial review, and the judgment that the cited invalid trademark is rejected or not registered will be severely punished by our bureau. If the existing review standards are implemented, the effective judgments and rulings of the court will not be implemented, which will damage the image of administration according to law.
To sum up: The first suggestion is to amend the relevant provisions of Article 50 of the Trademark Law in the subsequent revision. Establish a relevant system in which trademarks identified as malicious cybersquatting by an effective ruling can be directly transferred to the real owner's name. The second is to revise the examination and trial standards applicable to Article 50 of the Trademark Law as soon as possible. Third, in the process of registration examination, objection and reexamination, the trademark registration application currently involving Article 50 of the Trademark Law shall be examined and tried in accordance with the principle of prior application, and the trademark that no longer invokes the right to extinguish shall be rejected or not registered, and the registration announcement shall be made after the trademark is revoked, revoked or invalid 1 year.