On the revocation system of continuous non-use of registered trademarks, this study starting from practical problems, finds that there are many shortcomings in substantive requirements, procedural requirements, system coordination and convergence, and then discusses the countermeasures.
Letzte Änderung: 16.08.23
The first part of this study consists of a general overview of the revocation system of continuous non-use of registered trademarks. As regards the definition of connotation, the balance between the trademark registration acquisition and the trademark use acquisition is mainly interpreted in light of the relationship between the source of trademark right and trademark use. The historical evolution includes the comparative development of Chinese and foreign trademark revocation systems. In the part of system function, the theory of Verwirkung in civil law and the theory of market power regulation in competition law are used to clarify the trademark use value of registered trademarks and the promotion of trademark use for market competitive interests.
The second part of this study investigates the application status of the revocation system of continuous non-use of registered trademarks in China. On the basis of summarizing and analyzing the empirical cases related to the revocation system of non-use of registered trademarks in China in recent five years, it clarifies the dilemma of entity identification of trademark use, the application challenges of trademark revocation procedures, and the connections between the revocation system and other systems, paving the way for subsequent research.
The third part analyzes the substantive and procedural problems of trademark non-use revocation. In terms of substantive problems, the innovative research method of "dynamic system theory" is adopted. On the one hand, it clarifies the dialectical relationship between trademark use and non-use, and on the other hand, it studies the constitutive requirements of trademark use and the legitimate reasons for trademark non-use in China with reference to the characteristic provisions of foreign trademark use judgments. In terms of the procedural norms of trademark revocation, there are many problems in China's trademark revocation procedure, such as too loose starting conditions, lack of cross-examination procedures, and no specified period of procedural protection. On the basis of a comparative study of trademark revocation procedures in different countries and regions, such as Germany and the United States, the burden of proof, standard of proof, the scope of trial and the binding force of judgments on the revocation of registered trademarks in China are explored.
Finally, the study analyzes the coordination between the revocation system of non-used registered trademarks with other trademark procedures. This part focuses on the effectiveness of the defense of non-use of registered trademarks and the coordination between the revocation system of non-use of registered trademarks with opposition procedures, invalidation procedures, and trademark infringement procedures. Then all the problems mentioned in the above chapters, are summarized and suggestions are put forward for improving the law.
XU Yinghan
Prof. Dr. Xuelong Peng, Zhongnan University of Economics and Law, V.R. China
I.5 Methodenfragen
