Efforts Should Be Made to Contain Malicious Trademark Registration

China IP News
China IP News  ————————————————

Latest news from State Administration for Industry and Commerce of the People's Republic of China (SAIC) show that 5,000 malicious trademark registrations have been handled in the first half of this year, up 190% than the last year. Meanwhile, statistics from this news press show that 1,826 malicious trademark registrations have been handled in 2013, up 127.4%.

Currently, China adopts first-to-file principle. In this system, the right to the grant of a trademark lies with the first person to file a trademark application for protection, regardless of the date of actual usage. This means a trademark that has successfully registered will defeat a trademark that has long been in use in China for a longer time but has not obtained registration." In some western countries, the first-to-use principle is adopted. The trademarks could be approved to those who could demonstrate that they have used the trademarks earlier than other applicants. But in China, to win malicious trademark registration cases, the right holders should not only demonstrate that they are first to file, but also have to demonstrate that other applicants' applications are of the subjective malicious breaching of law." Says professor Yao Huanqing from Renmin University.

"Building brand awareness is a gradual progress and each step should be protected by law." says Dong Baolin, a researcher from the Supreme People's Court. According to Dong, the current trademark law system mostly focuses on protecting the well-know trademarks, and ordinary marks without social awareness haven't gained enough protection. Besides, Chinese law system hasn't established trademark-recovering rules, as a result, Chinese enterprises have to file trademarks on all the Classes to prevent malicious trademark registrations. Due to the factors above, trademark registrations are artificially high and malicious trademark registrations are occurring. If the companies plan to expand the business scope, they have to obtain a warrant from other applicants or file a new mark.

Dong says that in a bid to avoid  malicious trademark registrations, the administrative could take some measures, for example, they could launch investigations against those who have filed a large number of trademark registrations, but haven't commercialized those marks.

It is worth noting that the newly revised trademark law has added some terms to curb malicious trademark registrations, for example, the law clearly forbid applicants file others' trademarks as enterprise name, the applicants are banned to file the already used trademarks as their own marks, malicious trademark registrations are strictly forbidden by the agents, otherwise they will be punished by the law. Inside watchers agree that the newly revised trademark law will promote healthy growth of trademark registration by hindering improper filings. 

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