On the construction of the compulsory transfer system for preemptive registration of trademarks:Comment on the relevant provisions of the Draft Amendment to the Trademark Law of the People's Republic of China(Draft for Comments)
To combat malicious trademark registration and maintain order in the trademark market,the Draft Amendment to the Trademark Law of the People's Republic of China(Draft for Comments)proposes a compulsory transfer system for trademarks registered in bad faith,inspired by the Paris Convention for the Protection of Industrial Property.This system allows the rightful trademark owner to request the national intellectual property administrative department to transfer the maliciously registered trademark to them.It merges the processes of"trademark opposition or invalidation"and"applica-tion for trademark registration",thereby protecting legitimate trademark owners'rights,reducing registration costs,sav-ing administrative resources,and addressing deficiencies in the current system.Precedents in China's judicial practice have required registrants to transfer trademarks,and similar foreign legislation provides useful references for this system's construction in China.Thus,the introduction of this system is reasonable,necessary,and feasible.However,its cur-rent design needs refinement.To improve its operability,the system should be enhanced in three key areas:firstly,in terms of procedural settings,considering the differences in effectiveness principles,establishment purposes,and exami-nation contents between the compulsory transfer system for registered trademarks and the invalidation declaration system,it is necessary to establish a separate compulsory transfer system for registered trademarks.Secondly,in terms of transfer time,it is clear that the deadline for the forced transfer request right of the registered person is consistent with the time of invalidation of the application,both of which are five years.Thirdly,in terms of scope of application,circumstances should be expanded under which compulsory transfer can be applied,including cases of malicious registration of similar trademarks.
malicious registration of trademarkscompulsory transfer of trademarksinvalidation
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