□ Dong Binghe
The 2022 Beijing Winter Olympics has presented an extraordinary ice and snow event to the world, and the strength and effectiveness of intellectual property protection behind it are also commendable.
Today, although the Winter Olympics have come to an end, the problem of malicious trademark squatting caused by the squatting of the Winter Olympics-related logos and the names of elite athletes as trademarks deserves long-term attention.
Malicious squatting of trademarks is a typical speculative behavior. The purpose of the squatters is very simple, that is, to pursue the word "profit".
Obviously, malicious cybersquatters do not want to use the cybersquatted trademarks on their own goods or services, but "selling" them is the main way out. Otherwise, the cybersquatted trademarks will become a burden.
Since trademark squatting has become a "business", it is not enough to just squatting one or two trademarks.
At the same time, there is also a large demand for the purchase of trademarks in the market.
Otherwise, the market for trademark trading will not develop, trademark squatting can only be an occasional and sporadic behavior, and it is not necessary to invest a lot of public resources to regulate.
From this, it is not difficult to find two key points in the governance of malicious squatting of trademarks: first, to minimize the opportunities available to squatters, so that squatters have no chance to take advantage; second, to vigorously reduce the profit margins of squatters , making them unprofitable.
The former is "source" control and the latter is "export" control.
Under the system of obtaining exclusive right to use trademark registration, it is unrealistic to completely eliminate trademark squatting, but through appropriate strategies and measures, it is possible to keep trademark squatting under control and minimize its adverse effects.
The opportunistic origin of trademark squatting lies in the beginning.
That is to say, there are a large number of signs with commercial value but not applied for registration as trademarks in the market, including unregistered trademarks and corporate names and names with certain influence.
For malicious squatting of trademarks, people may pay more attention to the "evil" of squatting, but ignore a deeper problem: under the circumstance that my country has established a trademark registration system and has implemented a system for obtaining exclusive rights to use trademarks for decades, Why are there so many companies who would rather take the risk of being squatted rather than apply for trademark registration before using it?
Be sure to use it first, apply later, and don't even apply for registration after using it.
In contrast to patents, many companies know that they should apply for patents as soon as possible after the development of new products and new technologies. Few companies dare to take risks and apply for patents after the products are launched.
The cost of trademark registration is much lower than that of patents, but the enthusiasm of enterprises to apply for patents is much higher than that of trademark applications.
The export of trademark squatting lies in market demand.
Trademark trading, there is a buying and then selling.
There is a certain cost to registering and holding a trademark. If everyone chooses to apply for trademark registration by themselves, rather than buying from others, there will be no buyers for the trademark registered by squatting. , naturally no one will do it.
So, what are the reasons why people are willing to buy trademarks instead of applying for registration?
You know, according to the current fee standards, the cost of applying for a trademark yourself is usually lower than buying a trademark.
Market entities are reluctant to apply for trademark registration, or choose to purchase when they are unwilling to apply for trademark registration. There are many influencing factors, including costs and expenses, complexity of procedures, predictability of results, and people’s perceptions and concepts, etc. .
This first requires us to further optimize the trademark registration process to make it more convenient, transparent and predictable.
One of the profitable ways of trademark squatting is through infringement lawsuits or threats of infringement lawsuits, requiring previous users to "buy back" their own trademarks at high prices, which is similar or close to blackmail or extortion in nature. .
Although many prior users choose legal struggles and succeed in such situations, on the one hand, such rights protection requires a lot of time and economic costs; on the other hand, the current trademark law stipulates The remedies are limited, and the squatter cannot claim substantive rights over the squatted trademark itself or reclaim the trademark, so there will always be some squatters who choose to trade with the squatter.
Paragraph 3 of Article 59 of the Trademark Law stipulates the defense system for the continued use of prior trademarks, which provides a bailout for those who have been squatted.
However, if we can go a step further and establish a mandatory transfer system to treat the application or registration of the malicious squatter as the application or registration of the squatter, it will not only make the squatter lose the chips to threaten the squatter, but also The latter can have additional benefits, which will surely encourage more squatters to refuse to negotiate and compromise with the squatters, and the chances of the squatters making profits will be greatly reduced.
This blocks the "export" of malicious cybersquatting, reduces the profit opportunities for malicious cybersquatters, and increases their legal risks, thereby effectively suppressing the impulse to cybersquatting.
Another way to profit from trademark squatting is the transfer of a trademark to someone else.
The current practice of restricting trademark transactions seems to effectively block the profit path of squatters, but prohibiting the transfer of registered trademarks is neither reasonable nor practical. cost.
In order to avoid harming innocent people, it is necessary to reduce relevant fees, so that those applications for genuine and bona fide use purposes will not be affected.
For malicious cybersquatting of corporate names and names with a certain influence, the application threshold of Article 6 of the Anti-Unfair Competition Law should be appropriately lowered, and at the same time, the anti-unfair competition law and the Civil Code related to name rights, name rights, etc. The connection and coordination of personality rights clauses, break through the state of separation between personality rights infringement lawsuits and trademark infringement lawsuits and unfair competition infringement lawsuits, provide multiple protections for the names and names of enterprises with certain influence, and increase the law of malicious squatting and economic costs.
Reducing the opportunities for trademark squatting and increasing the economic cost and legal risks of trademark squatting are considered "blocking"; effectively reducing the need for market entities to purchase trademarks is "sparse".
Trademark squatting has become a business at present. Dealing with problems in a way that conforms to business logic, addressing both the symptoms and the root causes, is more effective than simply using administrative power to control, and it is more in line with the requirements of modernizing national governance and building a country under the rule of law. .
(The author is a professor at Wang Jian Law School of Soochow University)