The Paper's reporter Tan Jun
The "Trademark Examination and Trial Standards (Draft for Comment)" recently released by the State Intellectual Property Office on its official website has been extended to July 31 for soliciting comments from all sectors of society.
The State Intellectual Property Office extended the "Trademark Examination and Trial Standards (Draft for Solicitation of Comments)" Screenshot of the official website of the State Intellectual Property Office
The Paper (www.thepaper.cn) noted that the draft for comments has set up a chapter on the specific examination and adjudication criteria in practice and details ten situations in response to the first paragraph of Article 4 of the 2019 Trademark Law amendment (i.e., "applications for the registration of bad faith trademarks that are not intended for use shall be rejected"). "Bad faith preemptive registration, hoarding and profiting from the resale of trademarks are stubborn diseases in the field of trademarks, and the State Intellectual Property Office has presided over the revision of trademark examination and trial standards, so that Article 4 of the Trademark Law can be fully 'landed', and the case of one person hoarding nearly 10,000 trademarks in the past will become history." Relevant intellectual property experts told the surging news that there are only three or five thousand commonly used Chinese characters in China, trademark resources are limited, and the act of squatting and hoarding trademarks violates the principle of good faith, violates public order and good customs, disrupts the order of trademark registration management, and is likely to cause serious adverse social impacts, and it is time for the state to strengthen governance.
A company specializing in the registration of various surnames and imperial names
"Zhao Qiansun Li and Zhou Wu Zheng Wang." Feng Chen Chuwei, Jiang Shen Han Yang..." Compiled in the early Northern Song Dynasty, the "Hundred Family Names" played a huge role in the inheritance of Chinese surname culture and the understanding of Chinese characters.
Various surnames, Dr. X is registered Screenshot of the official website of the State Intellectual Property Office
The surging news recently reported that the company belonging to the well-known herbal tea brand "Wang Laoji" applied for the registration of 100 "surnames + Laoji" in one go, causing widespread concern, and some readers joked that "this trick is really high, and what to drink in the future is Laoji".
As a well-known brand, it is not known whether "Wang Laoji" is a defensive registration or a business strategy preparation. However, a number of readers broke the news to reporters that it is not uncommon for trademark registrations similar to "hundred family names", such as "surname + doctor", "surname + doctor", "surname + doctor", etc., and even the emperors, concubines, and historical figures of successive dynasties have long been applied for trademarks one by one.
"Wei", "Qian", "Qin", "Fan"... According to the information queried by the China Trademark Network, on January 19, 2017, Hebei "Handan Development Zone Handan Dream Trading Co., Ltd." applied for 136 trademarks with "surname + surname" combinations within one day. Two days ago, the company also applied for the registration of more than 70 trademarks of the "surname + doctor" combination: "Dr. Mei", "Dr. Yao", "Dr. Qi" and so on. Earlier, in the three days from December 21, 2016, the company also applied for 185 trademarks of the "surname + family" combination, such as Shi Jia, Jiang Jia, Xie Jia and so on. According to the China Trademark Network, many of these "surname trademarks" have been registered.
Various combinations of letters are registered Screenshots of the official website of the State Intellectual Property Office
In addition to "Dr. X", "Doctor" has also been applied for as a trademark by many companies and individuals as a combination of "surname + doctor", such as "Dr. Li", "Dr. Zhou", "Dr. Liu" and so on. Among the trademarks applied for registration by a company called "Shantou Jimei Daily Necessities Co., Ltd.", there are dozens of more complete "surname + doctor" trademarks. In the company's trademark application, there are hundreds of family names series "X Doctor" is not enough, there are also hundreds of family name "X Doctors", "X Chinese Medicine", and even "X Divine Doctor" series.
In addition, according to the data of China Trademark Network on July 13, there are 75 trademarks related to "Han Wudi", the most famous "Han Wudi" trademark in the Han Dynasty; 341 trademark applications for "Qin Shi Huang"; 745 trademark applications for "Kangxi", and 1321 trademarks related to "Qianlong".
The emperor of the Han Dynasty was registered one by one Screenshot of the official website of the State Intellectual Property Office
When the name of the emperor became a trademark buzzword, a company called "History I (Beijing) Co., Ltd.", regardless of the length of his reign, historical merits, etc., was an emperor who applied one by one according to the dynasty. For example, the emperor of the Han Dynasty applied for registration from the "Han Shao Emperor" of the Western Han Dynasty to the "Han He Emperor" of the Eastern Han Dynasty, a total of 16.
The company has also registered the trademarks of many historical celebrities, such as Zhu Yingtai, Xishi sister, Chang'e sister, Chang'e princess, Guanghan Palace, Zhuge Liang, the last year of the Eastern Han Dynasty, Shangfang Sword, Zhaoyuan, Wu Zhaoyi and other trademarks.
The Surging News noted that a large number of trademarks such as the family name and the emperor's name were successfully registered and not used. Some trademarks have passed the exclusive term of protection of registered trademarks for 10 years and will not be renewed.
The applicant of the above-mentioned 100 surname trademarks, Handan Development Zone Handan Dream Trading Co., Ltd., according to an inquiry on the China Trademark Network, as of June 21, 2021, the total number of trademark applications was 834. According to tianyancha data, the company's registered capital is only 80,000 yuan.
Does a small and micro enterprise of this size need to use so many trademarks? In this regard, the Economic Voice of the Central Radio and Television Corporation once reported that "a Fortune 500 company cannot use so many trademarks." ”
Where is the "first person to mark" today
But that's not the craziest.
As early as 2018, in the "2017 National Ranking of Applicants' Trademark Applications" disclosed by professional institutions, the first place was a natural person named "Hou Fengyu", who applied for the registration of 5767 trademarks in one year, far exceeding the number of applications of large Internet companies such as Alibaba and Tencent.
Subsequently, in the ranking of trademark applications in the first half of 2018, the legal representative of "Guangzhou Weiyu Trading Co., Ltd.", which ranked tenth in the list, was Hou Fengyu. Therefore, at that time, Hou Fengyu was known as "the first person to trademark in China". The Paper inquired about the China Trademark Network, and as of July 13, 2021, the number of trademarks applied for by "Hou Fengyu" had reached 8,414. He began to apply for registered trademarks in June 2002 and is still applying for various trademarks in bulk until December 2020, while Guangzhou Weiyu Trading Co., Ltd., as of July 13, 2021, applied for 5876 trademarks, with a registered capital of only 1.1 million yuan. In the introduction of the webpage left by the company, it said that "the main business provides the transfer of trademarks in all classes, the information covers 45 major categories of goods, all of which are their own first-hand trademark resources, and more than 5,000 trademarks have been certified so far, which can be transferred and sold..."
In the first half of 2018, the top five companies were "unknown", but the number of trademark applications exceeded 5,000, which once triggered public doubts about the hoarding of trademarks by the above companies. The surging news inquiry found that 4 of them are interrelated, each with a registered capital of 1 million yuan, and to date, 4 of the 5 companies have been cancelled. The most recent cancellation date is May 11, 2021.
The Paper found that in the above-mentioned 2018 list, Zhuhai Dianyu Trading Co., Ltd., which ranked fourth in the number of applications, applied for the registration of 5,060 trademarks in one day on June 27, 2018, and a month later, Zhuhai Guanrui Trading Co., Ltd. submitted 5,753 trademark registration applications in one day. Tianyan's investigation shows that the two companies are the same legal representative, established on the same day, the same company registered address, and on September 29, 2019, the two companies were deregistered on the same day.
Tianyancha data shows that behind these companies or individuals who apply for hoarding trademarks in large numbers, there are often intricate and inextricable relationships through equity penetration.
Screenshot of Douyin, a person who claims to have tens of billions of trademark wealth on Douyin
On Douyin, there are also people who call themselves "the first person to trademark in China", claiming to be "the person who owns the most and best trademarks in China" and "4,000 collectors of trademarks of historical celebrities and monuments". On April 21, 2019, the man named "Shi Lei" appeared in "None of You" as a "brand expert", asking for an annual salary of 10 million because he "registered nearly 100,000 trademarks, which is the person with the most trademarks in China", declaring that he is "rich and invincible" in the field of intellectual property.
The Paper's inquiry into the China Trademark Network found that as of July 13, 2021, there were only 1,475 trademarks with "Shi Lei" as the applicant's name.
In the Douyin video posted by "Shi Lei", it claims to have a trademark estimated at 10 billion, and this trademark is "SpaceX". It has the same name as Musk's Space Exploration Technologies Company. He also claimed to be the person in charge of the world's first "trademark museum", and the tables in the room were covered with trademark certificates, "every trademark it treasured is enough to shock you", and the ones that came out to give people "appreciation" were: the world world; Qin Shi Huang; the Great Wall; Li Bai; Tang Bohu; He Shi Bi; Zhuge Liang, Hongmen Banquet, Wu Zetian, etc.
The reporter searched for relevant trademarks and found that a person named "Chang'e (Beijing) Network Technology Co., Ltd." (hereinafter referred to as Chang'e Company) applied for as many as 466 trademarks, including Wu Zetian, Zhuge Liang and other historical figures. According to Tianyan's investigation, the legal representative of Chang'e Company is Shi Lei, and Chang'e Company is a shareholder of the historical (Beijing) Co., Ltd. mentioned above.
Limited trademark resources
"Some people boast about their trademark squatting, but they lack understanding of the new trademark law." Ma Dongxiao, a well-known intellectual property lawyer, said, "Trademarks are not used for collection, the life of trademarks lies in use, and its core function is to help consumers identify the source of goods or services, and to promote production and operators to ensure the quality of goods or services. The market supervision department has the right to investigate and deal with the false publicity behavior of some professional trademark squatters. ”
Ma Dongxiao believes that the name of successive emperors and the surnames of hundreds of families have been arbitrarily and preemptively registered, which is related to China's registered trademark system. "At the beginning, they used the 'first registration principle' in China's trademark law to preemptive registration, occupying a large number of trademark name resources and even forming a monopoly." Subsequently, it was extended to the squatting of trademarks that had been used by others but had not yet had time to register. In 2018, statistics showed that the number of registered trademark applications in our country reached three or four million per year, but nearly half of the top ten trademark registrations were individuals, who registered thousands of trademarks a year, with an average of more than a dozen trademarks registered every day. Obviously, their registration purpose is not for personal use, but for hoarding and trading. ”
When Ding Zhen in Sichuan suddenly became popular, the surging news had secretly visited the black and gray production that had preemptively registered Ding Zhen's trademark. A Ding Zhen trademark that is still applying and has not passed the substantive examination actually asks for 180,000 yuan.
The "Voice of the Economy" column of the Central People's Radio and Television Corporation also disclosed that some trademarks applied for in batches for network hot words like factory assembly lines hide a gray industrial chain that spreads to the emerging Internet industry and the digital economy. Spend less than 1,000 yuan to preemptively register a trademark, resell it to the original author, and make an "easy" profit of tens of thousands of yuan or even hundreds of thousands of yuan as soon as you enter and exit.
As trademark resources are scrambled and divided among "professionals", there are fewer and fewer good trademarks. According to the disclosure of the State Intellectual Property Office in September 2020, the cumulative number of valid trademark registrations in China reached 28.23 million.
Liu Kai, a intellectual property lawyer, said, "Consumers mainly identify trademarks through Chinese, while the commonly used Chinese characters in China are 3500 to 5000, and there are even fewer words and combinations with convenient memories and beautiful meanings." The limited resources of trademarks are objective facts. "There are views in the industry that there are currently about 115 million market entities in China, about 90,000 Chinese characters, and according to the calculation of 5,000 commonly used words, combined into non-similar trademarks, about 60 million trademark registrations can only be supported."
On April 23, 2019, the Standing Committee of the 13th National People's Congress decided to amend the Trademark Law of the People's Republic of China, adding a clause that "applications for the registration of a bad faith trademark that are not intended for use shall be rejected" to strengthen the obligation to use the trademark, "first of all, it will be applied at the examination stage, so as to move the threshold against bad faith registration forward, and as a reason for filing objections and requesting invalidation, it will be directly applied to the opposition procedure and the invalidation procedure." The State Intellectual Property Office introduced it in the Interpretation of the Amendment.
In the face of the increasingly fierce behavior of trademark hoarding and squatting, more and more trademark agencies have also begun to strengthen the review of bad faith applications such as hoarding and squatting before accepting the entrustment of registration applications.
"According to recent data, the rate of trademark registration applications returned by the company in the agent is about 24%, and among the returned applications, more than 80% are suspected of squatting and social hotspots, public events and other adverse impact issues, indicating that there are still many abnormal applications such as trademark squatting and famous brands and rubbing hot spots." The person in charge of Zhiyu Interconnection Technology Co., Ltd., a well-known domestic intellectual property agency, told the surging news that in addition to strengthening the traditional manual review, the company also makes full use of its technical advantages in the field of big data to establish a set of abnormal application judgment models, comprehensive application status, associated entities, number of applications, application time and other dimensions, and focuses on monitoring abnormal application behavior, which has a good effect on preventing and cracking down on malicious trademark applications.
The strictest crackdown: reject malicious registrations and blacklist them
The Paper noted that at present, China's Trademark Law does not prohibit the number of trademark applications by enterprises, nor does it deny the circulation and transfer of trademark rights. For the resources occupied by the long-term non-use of trademarks, the Trademark Law stipulates a "three-way" system, that is, a system of cancellation without using a trademark for three years.
However, "malicious applications that are not intended for use" will be rejected, and how to determine "not for the purpose of use" and "bad faith" will become the key.
The Trademark Examination and Hearing Standards (Draft for Solicitation of Comments) clearly defines that the "application for bad faith trademark registration not for the purpose of use" stipulated in Article 4 of the Trademark Law refers to the applicant's act of submitting a large number of trademark registration applications based on the needs of production and business activities, lacking the true intention to use, improperly occupying trademark resources, and disrupting the order of trademark registration. To determine whether it constitutes "malicious intent not for the purpose of use", the basic circumstances such as the characteristics of the applicant's industry, business scope, and business qualifications should be comprehensively considered; The overall situation of the number, class span and time span of the trademark registration application submitted by the applicant, the specific composition of the signs of the submitted trademark registration application, the actual use of the trademark, and whether the applicant had previously registered the trademark in bad faith and infringed the exclusive right to use the registered trademark of multiple entities, comprehensively judging whether the application was clearly inconsistent with commercial practice, clearly exceeded the legitimate business needs and actual business capabilities, and clearly had the intention of seeking improper benefits and disrupting the normal order of trademark registration.
The Draft for Comments also clarifies the applicable requirements, considerations and various applicable circumstances for applications for the registration of bad faith trademarks that are not intended for use, and attaches more than 20 typical cases to illustrate them.
"Before the revision of the Trademark Law, trademark registration that was 'not intended for use + bad faith' could only be regulated by 'registering trademarks by improper means' in Article 44 of the Trademark Law, and now the revision of the Trademark Examination and Trial Standards has made Article 4 of the new Trademark Law 'landed' in an all-round way." Ma Dongxiao introduced that in the draft for comments, a large number of malicious registration acts were intercepted in the trademark review and adjudication process, for example, "a large number of applications for registration are the same as or similar signs with public cultural resources such as the names of well-known figures and well-known works", "a large number of applications for registration and other people's enterprise name, enterprise name abbreviation, e-commerce name, domain name", "a large number of applications for registration of generic names and industry terms on designated goods or services", "a large number of applications for registration and a large number of transfer of trademarks, and the transferee is relatively scattered" and other disrupting the order of trademark registration, All may be considered to be "not for the purpose of use" of malicious application for registration.
In March this year, the State Intellectual Property Office issued the "Special Action Plan for Cracking Down on Bad Faith Trademark Squatting", and decided to focus on the special action to combat bad faith trademark squatting, which will last until December. On May 8, He Zhimin, deputy director of the State Intellectual Property Office, said that the state had blacklisted applicants who had registered trademarks in bad faith. He introduced that since the beginning of this year, in terms of trademark substantive examination, the application of the new trademark law has rejected more than 10,000 applications for the registration of bad faith trademarks that are not for the purpose of use; nearly 1,000 applicants for trademark registration suspected of bad faith have been added.
The Surging News also learned from Zhiyu Internet Technology Co., Ltd. that as a trademark agency, based on the self-built abnormal application judgment model and related public information, the company has now established an internal applicant blacklist mechanism to intercept the subjects that have been identified or suspected of malicious applications, or take stricter review requirements.
"With the comprehensive 'landing' of Article 4 of the Trademark Law, the phenomenon of preemptive registration in bad faith without the purpose of use and squeezing out the resources of trademark names will be effectively improved." The phenomenon of one person hoarding thousands of trademarks will also become a thing of the past. Ma Dongxiao said.
Editor-in-Charge: Cui Xuan
Proofreader: Yan Zhang