Article 31 of the Chinese Trademark Law states that "using
unfair means to preemptively register the trademark of some
reputation of another person has used" shall not be
registered. According to the provision's language, fame
of the prior mark and the bad faith of the trademark applicant are
the two applicable elements of the bad faith filing prescribed by
Article 31. However, what other factors should be taken into
consideration when applying these two elements? The author hold the
view that a trademark's trademark inherent distinctiveness is
the premise and an important factor to be considered.
First, from the legislative perspective of the Chinese Trademark
Law, the mark's register-ability provision (absolute grounds)
and conflict of interest provision (relative grounds) are the two
fundamental factors to whether a mark can eventually obtain
Second, from the perspective of the applicable law's
consequence of order, the register-ability provision of the mark
(including trademark distinctiveness provision) should be applied
prior to the conflict of interest provision, and the absolute
grounds provisions should be applied prior to the relative grounds
Third, from the perspective of judicial interpretations on
protection of unregistered trademarks, the regulation of
unregistered well-known mark shall follow the bad faith filing
provision of "the trademark of some reputation of another
person has used" under Article 31 of the Chinese Trademark
Fourth, from the perspective of judicial practice and trail of
relevant cases, a mark's register-ability (including trademark
distinctiveness) shall be the premise of bad faith filing under
Article 31 of the Chinese Trademark Law, and marks that violated
the prohibited regulations are not applicable under the same
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
The Policy stresses on the need for a holistic approach to be taken on legal, administrative, institutional and enforcement issues related to IP.
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