The difference between revocation and invalidation of trademark rights

The revocation and invalidation of Trademark rights are the reasons for the termination of trademark rights. The trademark laws of most countries and regions in the world clearly distinguish between the revocation and invalidation systems. my country's current Trademark Law does not have the concept of "trademark invalidity", but is collectively referred to as "revocation". However, the “cancellation” provided for in Article 41 is essentially the invalidation of trademark rights, while the provisions of Articles 44 and 45 are “cancellation”. This revision of the Trademark Law should strictly distinguish between the trademark right revocation and invalidation systems, and make necessary modifications and improvements to the grounds for revocation and invalidation.

The difference between revocation and invalidation of trademark rights

Revocation of trademark rights refers to the reasons after the creation of trademark rights If the trademark right loses the basis for continued protection, the trademark authority shall make a decision to cancel the registration of the trademark. There is no defect in the acquisition of trademark rights, and the revoked trademark rights are valid until they are revoked. Reasons for cancellation are usually caused by non-use of the trademark or irregular use of the trademark.

The invalidity of trademark rights means that due to defects in the acquisition of trademark rights, the trademark authority declares that the trademark rights have no legal effect from the beginning.

There are the following main differences between trademark right revocation and invalidation:

(1) Different reasons

According to the provisions of Articles 44 and 45 of my country’s Trademark Law, reasons for cancellation include voluntary changes to registered trademarks or trademark registration matters; voluntary transfer of registered trademarks; suspension for three consecutive years Use; goods using registered trademarks are shoddily manufactured, passed off as good quality, and deceive consumers.

According to Article 44 of China’s Trademark Law, the reasons for invalidating trademark rights can be divided into three categories:

First, there is a lack of absolute conditions for registration, that is, trademarks must not use signs prohibited by law (Article 10 of the Trademark Law), must have distinctive features (Article 11 of the Trademark Law), and three-dimensional trademarks must not be functional. mark (Article 12 of the Trademark Law), and shall not be deceptive (Article 41, Paragraph 1 of the Trademark Law);

Second, prior infringement Rights, that is, infringement of trademark rights previously applied for registration by others (Article 28 of the Trademark Law) and other prior civil rights (Article 31 of the Trademark Law);

Third, the registrant violates honest industrial and commercial practicesHabits, including infringement of the rights and interests of well-known trademarks (Article 13 of the Trademark Law), agents or representatives registering trademarks of principals or representatives in their own names without authorization (Article 15 of the Trademark Law), improper use of geographical indications to mislead The public (Article 16 of the Trademark Law), preemptive registration of a trademark that has been used by others and has certain influence (Article 31 of the Trademark Law), and other unfair means to obtain registration (Article 41, paragraph 1, of the Trademark Law) ).

(2) Different time limits

If there is a reason for revocation, you can apply for revocation of trademark rights. Due to the uncertainty of the cause, no time limit can be set for the cancellation of the application.

According to the provisions of Article 44 of the Trademark Law, the time limit for applying for invalidation of trademark rights is divided into two situations:

First, there is no time limit. If the absolute conditions for trademark registration are lacking, the Trademark Office, ex officio or other units or individuals, may request the Trademark Review and Adjudication Board to declare the trademark invalid without time limit; for trademarks that have been registered for malicious infringement of the rights and interests of well-known trademarks, the owner of the well-known trademark shall apply to declare the trademark invalid. There is no time limit for trademark invalidity. The former is the need to protect social and public interests, while the latter reflects the special protection of well-known trademarks and the severe punishment of malicious behavior.

Second, five years. Due to the autonomy of civil rights, only prior rights holders or interested parties can request the Trademark Review and Adjudication Board to declare invalidity, and the Trademark Office may not declare it ex officio on the grounds of protecting prior rights. Moreover, prior rights are only private rights, and public welfare factors such as social relations and the stability of the market order must be taken into consideration when granting legal protection. A trademark that infringes upon prior rights has established market reputation through long-term use. If the trademark is declared invalid, it will destroy existing economic relationships. Therefore, the prior right holder’s right to request invalidation must be exercised within a certain period of time. Most countries stipulate that the request should be filed within five years from the date of trademark registration. The same applies to the second and third paragraphs of Article 41 of my country’s Trademark Law.

(3) Different legal consequences

The revocable cause occurs after the trademark right is obtained and is revoked The trademark right shall become invalid upon cancellation. According to the provisions of Article 40 of the "Regulations for the Implementation of the Trademark Law", if a registered trademark is revoked, the Trademark Office shall announce it, and the exclusive right to use the registered trademark shall terminate from the date of the Trademark Office's cancellation decision.

The cause of invalidity exists when the trademark right is acquired, and the trademark right that is declared invalid is invalid from the beginning. According to Article 36 of the Trademark Law Implementation RegulationsAccording to the provisions of Article 41 of the Trademark Law, if a registered trademark is declared invalid (cancelled) in accordance with the provisions of Article 41 of the Trademark Law, the exclusive right to use the trademark shall be deemed to have ceased to exist from the beginning. Decisions or rulings regarding the invalidation of registered trademarks, judgments and rulings on trademark infringement cases made and executed by the People's Court before the invalidation was declared, decisions on handling trademark infringement cases made and executed by the industrial and commercial administration departments, and decisions that have been performed Trademark transfer or licensing contracts do not have retroactive effect; however, compensation shall be provided for losses caused to others due to the bad faith of the trademark registrant.

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