Notice on Public Consultation on the “Several Provisions on Regulating the Registration of Trademarks (Consultation Draft)”
2. fax: 010-62083681.
3. By letter to: Department No. 2 of the Laws and Regulations Division of the State Intellectual Property Office, No. 6 Xitucheng Road, Haidian District, Beijing 100088 (please specify “Regulations on the Registration of Trademarks in the Lower Left Corner of the Envelope”)
(draft for comment)
In order to standardize trademark registration and maintain normal trademark work order, these regulations are formulated in accordance with the Trademark Law and the Trademark Law Implementation Regulations.
Where an application for trademark registration is made, the actual need for the exclusive right to use the trademark for the goods or services shall be included in the production and business activities, and the existing prior rights of others shall not be impaired.
If submitting or submitting an application for trademark registration, it shall comply with the relevant provisions of laws, regulations and rules, abide by the principle of honesty and credit, and shall not engage in the abnormal registration of trademark registration.
The act of abnormally applying for trademark registration referred to in these Provisions means:
(1) Applying for trademark registration as a trademark familiar to the relevant public, and adhering to the goodwill of others;
(2) rushing to apply for registration of trademarks that have been used by others and have certain influence, and improperly extracting the goodwill of others;
(3) knowingly or should be aware of the existence of other prior rights, but still preemptively applying for registration of the same or similar trademark;
(4) Repeated application for trademark registration, which obviously has an improper purpose;
(5) Applying for a large number of trademark registrations in a short period of time, obviously exceeding the reasonable limit;
(6) There is no intention to apply for trademark registration, and there is no actual need to obtain trademark exclusive right for goods or services;
(7) Other trademark application registration violations that violate the principle of good faith, infringe on the legitimate rights and interests of others or disrupt the market operation order;
(8) Helping others or trademark agencies to conduct trademark registration applications of the types mentioned in items (1) to (7) of this article.
The following acts shall be carried out in accordance with the provisions of the Trademark Law and the Implementation Regulations of the Trademark Law for the improper registration of trademark registration:
(1) Where an application for trademark registration is filed, the applicant shall submit the relevant evidentiary materials and explain the reasons in accordance with Article 29 of the Trademark Law. If there is no justifiable reason or insufficient evidence, it shall be in accordance with Article 30 or Article 35 of the Trademark Law. Reject the application or not to register;
(2) Where the registration of a trademark is obtained, it shall be registered by other unfair means as stated in Article 44 of the Trademark Law, and the registration of the registered trademark shall be invalid;
(3) The transfer of the acquired registered trademark shall be subject to any other adverse effects referred to in Article 42 of the Trademark Law and shall not be approved;
(4) Where a trademark agency engages in an abnormal application for trademark registration, it shall be in the act of disturbing the market order of the trademark agency by other improper means as stated in Article 68 of the Trademark Law, and shall be credited to the credit file, and the case shall be suspended if the circumstances are serious. Handling trademark agency business.
In addition to handling the abnormal registration of trademark registration, in addition to the provisions of the Trademark Law and the Trademark Law Implementation Regulations, the following measures may be taken according to the circumstances:
(1) to be notified on the government website of the State Intellectual Property Office and the China Intellectual Property News, and to be included in the national credit information sharing platform for publication, and the relevant departments shall take disciplinary measures according to law;
(2) Deducting and marking the number of registered trademarks obtained from abnormal applications in the statistics of trademark applications of the State Intellectual Property Office;
(3) The competent departments of intellectual property at all levels shall not grant, support or reward; if they have been identified as abnormally applying for trademark registration after they have been subsidized, supported or rewarded, they shall be recovered in whole or in part according to the circumstances; if the circumstances are serious, they shall be self-identified. The principal and its related entities shall not be subsidized, supported or rewarded within five years from the date of the abnormal application for trademark registration;
(4) Where a trademark agency engages in an abnormal application for trademark registration, the State Intellectual Property Office shall conduct a rectification of its legal representative, and the Trademark Industry Association shall adopt industry self-regulatory measures for the institution and relevant trademark agents;
(5) Defrauding funds, support, or rewards through improper registration of trademark registration, and if the circumstances seriously constitute a crime, the relevant authorities shall be transferred to the relevant authorities for criminal responsibility.
Before taking the measures listed in Article 5 of these Provisions, the parties shall be given an opportunity to present their opinions if necessary.
The competent departments of intellectual property at all levels shall promote the high-quality development of intellectual property rights, actively guide the public and trademark agencies to apply for trademark registration in accordance with law, and regulate the use of registered trademarks by the public in production and business activities.
Any organization or individual who discovers an abnormal application for trademark registration may report it to the State Intellectual Property Office. Where the State Intellectual Property Office receives a report or discovers an abnormal application for trademark registration, it shall promptly handle it according to law.
Any organization or individual that finds a registered trademark without a valid reason for three consecutive years may apply to the State Intellectual Property Office for cancellation, which shall be revoked by the State Intellectual Property Office.
This regulation shall come into force on the day of the month of 2019.
The State Intellectual Property Office attaches great importance to the above issues and actively carries out legislative research. It intends to improve the trademark laws and regulations, optimize the registration, use and protection of trademark applications, and form a long-term mechanism to curb the abnormal registration of trademarks. Although the trademark law after the third revision has added general provisions such as the principle of good faith, there are still no specific basis and standards in practice. Considering that the revision period of the trademark law is long and it is difficult to quickly curb the abnormal application for trademark registration in the short term, it is necessary to draw up the regulations of the department in accordance with the abnormal application behavior regulation in the patent field, with a view to fully utilizing the existing legal system and reaffirming the protection of registered trademarks. The legislative purpose of the exclusive right, strengthen policy guidance, effectively solve practical problems, and lay the foundation and experience for the revision and improvement of the trademark law in the future.
February 12, 2019