Understanding of the Article 15 of Law of Trademark of China
In article 41,“For registered trademarks, in violation of the provisions of Article 10, Article 11 or Article 12 of this Law, or obtained by deception or other improper means, the Trademark Office shall revoke the registered trademark ; Other units or individuals may request the Trademark Review and Adjudication Board to revoke the registered trademark.
If the trademark has been registered in violation of Article 13, Article 15, Article 16 and Article 31 of this Law, the trademark owner or interested party may request the trademark within five years from the date of registration of the trademark The jury decides to revoke the registered trademark. Well-known trademark owners are not subject to five-year time limits for malicious registration.
In addition to the circumstances stipulated in the preceding two paragraphs, a dispute over a trademark already registered may be filed with the Trademark Review and Adjudication Board within five years from the date on which the trademark is approved for registration.
The Trademark Review and Adjudication Board shall, after receiving an application for ruling, notify the relevant party concerned and make a reply within a prescribed time limit.
【Explanation】This article deals with the treatment of disputed trademarks that are not properly registered.
This article is divided into four sections, respectively, in violation of Article 10 of this Law, Article 11, Article 12, Article 13, Article 15, Article 16, Article 31, or Deception or other improper means to obtain registration of the treatment of the trademark, as well as the registration of the trademark has been controversial treatment has made clear provisions. The reason of he occurrence of the provisions of this article, first of all, the trademark registration violates the law. And the reason is manifold, there are reasons from the trademark registrants, but also from the trademark examination. Although the trademark examination has legal standards and objective conditions, but in practice, mistakes, fraud and censorship errors and other human factors, are also difficult to avoid. Nevertheless, in order to maintain the order of the market economy, no matter what the reasons for improper trademark registration, they should be corrected.
The first paragraph of this article provides two cases of improper registration of the trademark, one of which is in violation of Article 10, Article 11 and Article 12 of this Law.
Article 10 of this Law provides that the trademarks that is forbidden to use. That is to say, the mark listed in the article can not be registered as a trademark and can not be used as a trademark, mainly for the sake of public interest. Article 11 of the Law stipulates that three types of marks shall not be registered as trademarks, but if the marks are markedly distinctive and easy to be identified, they may be registered so as to clarify the significance of the marks.
Article 12 of this Law stipulates that registration in the form of a three-dimensional mark shall not be registered if it is in the form of the nature of the commodity itself, the shape of the commodity required for the purpose of obtaining technical effect, or the shape of the commodity having substantial value. In case of violation of these provisions, the Trademark Office may revoke the registered trademark, or the other entity or individual may request the Trademark Review and Adjudication Board to revoke the registered trademark.
This paragraph clearly provides for the handling of trademark registration by deception or other improper means, which is generally referred to as falsification, concealment of the truth or falsification of application documents and related documents, registration of fraudulent or improper means, such as forging business licenses, altering the scope of business, fabricating false applications and so on. These acts violate both the trademark law and the civil law principle, and the registered trademark rights obtained are illegal. This provision stipulates that the Trademark Office may revoke the registered trademark or may request the Trademark Review and Adjudication Board to revoke the registered trademark by another entity or individual. The revocation of a registered trade mark, as provided for in this paragraph, has no time limit and may be revoked at any time.
The second paragraph of this article provides that registered trademarks in violation of the provisions of Article 13, Article 15, Article 16, Article 31, from the date of trademark registration within five years, the trademark owner or interest may requests the Trademark Review and Adjudication Board to revoke the registered trademark, and maliciously register the well-known trademark shall not be subject to the five-year time limit. Article 13 is about people shall not violate the good faith and shall not violate the rules of registering others’ well-known trademarks by the means of copying, imitation, translation, etc
According to article 15 of the Law of Trademark of China, “If the agent or representative register the trademarks of the principle in their own names but without authorization of the principle, no registration and prohibition of use of the trademark shall be approved if the principle raised an objection。”Article 16 is concerned with the non-use of geographical indications in trademarks. Article 31 is the right to not encroach upon the legitimate rights of others, such as the right of infringe upon others 'design rights, citizens' portrait rights, name rights, citizens 'copyright, manufacturers' name rights and the right of origin. Or taking over others’ trademarks that has been used by others and has some influence by illegal means. In this latter case, it is clear that the trademark that has been used by others is actually a case of a trademark with a certain reputation that is not registered and has been used. Because this section of the illegal acts are mainly the dispute of civil rights and interests, so this section does not give the right to the trademark office of directly revoking the registered trademark. However, the trademark owner or interested parties can make a request for The Trademark Review and Adjudication Board (TRAB) to rescind the registered trademark within five years from the date of registration. Well-known trademarks registered by malicious, well-known trademark owners can also be held indefinitely, not subject to five years time limit.
In addition to the circumstances stipulated in the preceding two paragraphs, The principle can apply for the Trademark Review and Adjudication Board for adjudication within the statutory time limit of 5 years if the principle has any objection. According to this provision, if the owner of the registered trademark finds that the registered trademark is the same as or similar to the trademark that he has previously registered, causing the consumer to mistakenly recognize that his rights and interests are damaged. The principle can apply for the Trademark Review and Adjudication Board for adjudication within the statutory time limit of 5 years. The Trademark Review and Adjudication Board shall accept the application.
Paragraph 4 of this Article sets the procedure for adjudication of the Trademark Review and Adjudication Board. First of all, the Trademark Review and Adjudication Board is the statutory body responsible for the determination of registered trademark disputes, ruling the trademark dispute is the Trademark Review and Adjudication Board's duties. Second, applying for a dispute ruling to the Trademark Review and Adjudication Board to must comply with the statutory time limit, in accordance with paragraph 2, paragraph 3, in addition to exceptional circumstances (malicious registered other well-known trademarks), from the disputed trademark registration date The Trademark Review and Adjudication Board shall only accept the application for a dispute ruling within five years. In the case of the first paragraph, any unit or individual may apply to the Trademark Review and Adjudication Board for determination to revoke the registered trademark at any time.
The Trademark Review and Adjudication Board shall, after receiving the application for adjudication, examine it and meet the conditions for admissibility stipulated in this Law, accept the application, notify the relevant party and file a reply within a prescribed time limit. Notification of the relevant parties means that the party concerned shall be informed in a certain form of written form and involved in the adjudication activities according to the specified time, manner and requirements. The defense is a necessary part of the ruling and an important right of the parties concerned. The Trademark Review and Adjudication Board must ensure that the parties exercise their rights equally in adjudication activities. If the party concerned fails to submit the reply or rejects the reply on time, the ruling shall proceed as usual and shall not be affected.