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Home > UA Law > Akron Law Journals > Akron Intellectual Property Journal > Vol. 7 (2014) > Iss. 2

 

Authors

Xiaoqing Feng

Abstract

This article will explore varying aspects of the amendments of the Chinese Trademark Law. Part Two deals with detailed analysis and the reasons for the third amendment of the Trademark Law; this part is composed of five sections. The first section discusses the perfection of the application system for trademark registration, including the increase of the number of elements eligible for trademark registration, the implementation of “one trademark for multi categories,” the improvement of the system of opposition, the introduction of a proposal review system, and the availability for submitting electronic applications. The second section discusses (1) the improvement of the system for the use of trademarks, (2) the promotion of good faith and fairness, (3) the strengthening of the protection features of trademarks in the order of fair competition, (4) the prohibition of the registration of trademarks, which are in prior use by others as an unregistered trademark, (5) using others’ registered trademark as the name of business, and (6) the establishment of a mechanism to reject the claim for damages of compensation for registered trademarks, which are not used in practice. The third section probes into the right to exclusive use of a trademark and improvement of the protection level of trademark rights. The major points address: (a) bringing the intentional practice of providing conveniences for infringement of others’ trademark rights and facilitating others with trademark infringement into violation of right to exclusive use of a trademark; (b) introduction of a punitive damage system for infringement of right to exclusive use of a trademark and an increase of the penalty for frequent infringements; (c) raising the level of statutory compensation for infringement of right to exclusive use of a trademark and reducing the burden of proof of the proper holder; (d) itemization of administrative penalties for infringement of the right to exclusive use of a trademark; (e) excluding the practice of litigation for infringement of using trademark for non-commercial purpose; and (f) further clarification of the preliminary injunction before prosecution and a property preservation system. The fourth section comments on the regulation of the use of trademark, promoting the use of trademarks, and the realization that trademarks carry value. The main points of this section include: (a) defining the use of trademark in trademark law; (b) confirming the principle of good faith in use of the trademarks; (c) explicitly indicating the use of trademark license without filing may not confer bona fide status on the benevolent third party; and (d) clearly stating the legal consequences of improper use or non-use for three consecutive years. The fifth section is related to the improvement of other relevant systems, such as: (a) cancelling arbitration of disputes concerning registered trademarks and establishing the declaration system of invalidating a registered trademark; (b) strengthening the stability of trademark rights, including review by the Trademark Review and Adjudication Board (“TRAB”) after expiration of the statutory period of validity, and the handling of administrative cases related to trademark and the judicial process; and (c) regulating the behaviors and norms of trademark agents, improving the service quality of trademark agency, and punishment measures involving the principles of trademarks acts and misconduct in trademark agencies.

Part Three discusses some important issues that are not covered in the revised Trademark Law but are worth addressing in a further revision. The issues include: (a) the purpose of formulation of the Trademark Law, concerning whether the emphasis should be on “management” or “protection”; (b) the falsification of the concept “right to exclusive use of a trademark”; and (c) further reforms of the Trademark Law, including improving the system of trademark registration, trademark co-ownership, a protection system of the right to exclusive use of a trademark, a revocation system for unused trademarks for three consecutive years, fair use of the trademark system, and a registration system of geographical indications as trademarks.

In Part Four, this Article argues that this amendment of Trademark Law is a significant improvement of Chinese trademark legislation. The amendment has solved some urgent issues in trademark practice in China and has been conducive to China’s economic and social development. However, there are still some issues that need to be addressed or resolved completely.

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