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What is the effect of the amendment of the new trademark law objection procedure on the right holder?

2014-2-11 16:28| Announcer: admin

Article 30 of the Trademark Law of the People 's Republic of China on Article 3 of the Trademark Law shall, within three months from the date of the announcement, raise any objection to the preliminary examination of the trademark. "It is clear that there is no restriction on the subject of the objection, Can be any person, legal person, organization, group and so on. And the reasons for dissent there is no requirement, it can be "absolute reason", it can be "relative reason." 
Where the existing Trademark Law stipulates that "the objection shall be made to the trademark for preliminary examination and announcement, the Trademark Office shall listen to the facts and reasons of the opponent and the opponent and make a ruling after verification and verification. Shall be submitted to the Trademark Review and Adjudication Board for review within 15 days from the date of receipt of the notice and shall be determined by the Trademark Review and Adjudication Board and notified in writing to the opponent and the opponent. If the parties concerned are dissatisfied with the marks of the Trademark Review and Adjudication Board, Within 30 days from the date of receipt of the notice to the people 's court. 
In this way, once the objection application by others, the objection can not be reviewed, the review failed after the administrative first instance, second instance, and even administrative review, leading to trademark opposition case trial cycle is too long, which affected the trademark applicants in time Trademark registration. Some commercial competitors use this system defect to extend the approval time by extending the time for the applicant to register the mark or to use the same or similar trademark as possible and to avoid the possibility of tort liability as long as possible, Trademark approval and then stop using. 
In view of this, if the competitors filed a malicious objection application, trademark applicants within a few years will not be able to obtain trademark registration, product listing progress will also be greatly affected. Therefore, to simplify the trademark rights procedures, improve the trademark opposition system has been the "Trademark Law" to amend an important goal. 
The new law for the above issues, first of all to determine the main objection. Article 33 of the Trademark Law stipulates that the trademark of the preliminary examination and approval announcement shall, within three months from the date of the announcement, be deemed to be in violation of Article 13 (2) and Three, Article 15, Article 16, paragraph 1, Article 30, Article 31, Article 32, or any person who considers that in violation of Article 10 and Article 11 of this Law , Article 12 provides that the objection may be made to the Trademark Office. "This article makes it clear that although no one may object to the trademark registration objection on" absolute grounds ", the objection to be based on" relative grounds "is limited to the same or Approximate goods have been registered in the right of the owner of the right or have been the first use of the right person. In this way, both the number of trademark opposition can be reduced, without prejudice to the supervision of improper registration of trademarks, to avoid the use of objections deliberately delay the registration of the time. Over the past few years, the number of trademark opposition cases increased significantly every year, one of the reasons is due to malicious cybersquatting or malicious objection phenomenon is on the rise. In practice, some units and individuals maliciously objected to delay the registration of trademark registration applicants to obtain the time of registration of the trademark, from which to obtain improper benefits, many applicants in order to make the new listing as soon as possible, forced to pay property, in exchange for the other objection or revocation Has objected to the objection. The implementation of the new law will greatly reduce the number of malicious objection applications, the applicant is conducive to timely registration. 
The amendment of the new law to the objection procedure is mainly embodied in Article 35, and the second paragraph stipulates that if the Trademark Office makes a decision on registration, it shall issue a trademark registration certificate and make a public announcement. If the opponent refuses to accept it, 14, Article 45 of the provisions of the Trademark Review and Adjudication Board to declare the registered trademark invalid. In this way, in the case of the Trademark Office to dismiss the trademark objection, to allow the registration of the trademark, the omission of the objection ruling of the Trademark Office, the proceedings can make the trademark right as soon as possible through the trademark invalid declaration procedure to protect the opponent to obtain further The right to relief. 
My opinion: 
Obviously, the amendments to these terms are very beneficial for the applicant, greatly shorten the registration cycle, to promote new products faster listing, and further active market economy. But the author personally think that there are some flaws in this modification: 
First, the decision of the Trademark Office to dismiss the trademark objection may take effect immediately without administrative review and judicial review. And goodwill opponents need to provide sufficient evidence in the objection stage, or once the objection failed, the objection to the failure of the trademark will be directly registered. And it is possible for a reasonable period of time that the goodwill can not collect sufficient evidence for various reasons, in which case the objection is difficult to be supported and will result in more malicious trademark application being registered. 
Secondly, although the opponent refuses to accept the decision of the Trademark Office, it may still request the Trademark Review and Adjudication Board to declare the registered trademark invalid. However, due to the provisions of Article 47 of the new Law, "the decision or ruling of a registered trademark is invalid, The decision to determine and enforce the trademark infringement case, the ruling, the conciliation statement and the decision on the handling of the trademark infringement case made and executed by the administrative department for industry and commerce and the trademark transfer or license contract that has been performed shall not have retrospective effect , Even if the registered trademark is in fact a trademark law, the trademark registrant can still obtain an improper advantage by asserting the exclusive right of the trademark in order to obstruct the trademark The trademark owner uses the trademark. For example, if the trademark registrant records the mark in the customs office, even if the trademark is still inactive, the goods of the goodwill trademark can not be passed from the customs. In view of these, these changes may contribute to malicious trademark registration applications and malicious trademark infringement litigation. 
Again, because of the fact that "any person" can object to the "absolute grounds", some people are likely to still rely on the above "absolute grounds" to raise malicious objections and profit, it is difficult to completely eliminate malicious objections. 
Any legal development and modification are "double-edged sword", the new trademark law is also true. On the one hand, the revision of the new law in this procedure can reduce the number of malicious objections to a certain extent, shorten the cycle of the opposition process; and from the other side, give opponents more pressure, is not conducive to curb malicious The phenomenon of cybersquatting.
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