"Bad faith" is a common legal term; in the context of Trademark Law, it generally refers to behaviors of the trademark applicants that violate principles of good faith. China Trademark Law has clear provisions on "bad faith." The author summarizes some provisions related to "bad faith" in trademark prosecution cases. From the summary below, it can be seen that if the holder of a disputed trademark really has "bad faith", it is likely that the CNIPA will support relevant bad faith claims:
The Latter Part of Article 4
Contents: Trademark applications filed in bad faith without intention for real use should be rejected.
Comments: This article mainly regulates the behaviors of maliciously and massively hoarding trademarks without the intention of real use of them. This behavior actually uses unfair means to maliciously occupy trademark resources, so when the Trademark Law was amended in 2019, this provision was written into it. "Filing without intention for real use" makes this article different from the rules below. Since this provision came into effect, it has been common for the CNIPA to use this clause to reject trademark applications during the examination process.
Additionally, because this clause is on an absolute ground, anyone can cite it to file opposition or invalidation against disputed trademarks, for example: the owner of the disputed mark "铝先森" has applied over 400 marks in many classes. The CNIPA has determined in opposition and invalidation proceedings that the owner's trademark registration behavior exceeds the reasonable needs of ordinary market participants for using trademarks, with obvious intentions of copying and imitating others' trademarks, violating the principle of good faith. Therefore, according to Article 4, the disputed mark was invalidated.
Article 7
Contents: When applying and using a trademark, the applicant should follow the principle of good faith.
Comments: Although the article does not directly stipulate that "bad faith" applications should not be registered, we can deduce that applications violating principles of good faith should not be registered. Take the following case as an example:
The opposed mark
"余仁生保贝" completely
contains the opponent's cited marks 
, etc., which will mislead the consumers that
they are series marks or have some relationship. Besides the
opposed mark, the owner filed many other marks that are similar to
others' brands, such as "喜太郎",
"葵花芝婴童",
"闪亮好眼神", etc. Among
them, many of the marks have been rejected or partially rejected by
the CNIPA because they are highly similar to others' prior
marks, and opposition actions have been initiated against some
marks by the real trademark owner. The CNIPA holds that the
behavior of the opposed party applying for the opposed mark is in
bad faith of copying and imitating others' marks, which
violates the principle of good faith of Article 7. Thus, the
opposed mark is rejected for registration in the opposition
action.
Article 10.1.7
Contents: Deceptive signs that may cause the public to have misconceptions about the quality, characteristics, or origin of goods cannot be used as trademarks.
Comments: This clause does not directly stipulate that trademarks applied for in bad faith shall not be registered, but "deception" actually includes the meaning of dishonesty. If the mark itself is deceptive or the applicant's behavior is deceptive so that the sign may mislead the public about the quality or origins, etc., such marks cannot be used as trademarks. Please refer to the following case.
The invalidation applicant "中央美术学院" (Central Academy of Fine Arts) is a higher education institution in China, and "央美" as the abbreviation for "中央美术学院" has been widely known among the public. In the perception of relevant public, "央美" and "中央美术学院" have already formed a corresponding sole relationship. The owner of the disputed trademark still applied for the disputed trademark "小央美美育" which completely contains the words "央美". This may lead consumers to associate it with the Central Academy of Fine Arts or mistake that there is some kind of affiliation between the invalidation applicant and the owner of the disputed mark, resulting in misconception about the source of goods or services in violation of Article 10.1.7.
Article 44.1
Contents: Trademarks that have already been registered, if they violate the provisions of Article 4, Article 10, Article 11, Article 12 and Paragraph 4 of Article 19 of this law or are obtained through deception or other improper means should be invalidated.
Comments: This is a commonly used clause in cases of invalidation cases, where "obtained through deception or other improper means" actually includes the meaning of "bad faith", for example, in the invalidation action against mark "AdamLee", the evidence submitted by the applicant shows that their "Lee" trademark has been prior used on clothing and other goods and has gained a certain reputation. The disputed trademark is similar to the well-known "Lee" trademark. In addition to the disputed trademark, the owner has also applied for more than 300 trademarks in other classes such as "蒂芙娅 TF&AY", "白相宜"; "童臣氏", which are identical or similar to others' famous brands. This behavior goes beyond normal production and business needs of ordinary commercial entities, and the owner has not provided reasonable explanations for their registration of these trademarks. Therefore, the disputed trademark is in violation of Article 44.1 of Trademark Law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
