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Under what circumstances will a registered trademark be declared invalid?
Release Time：
2020-04-01
There are three main categories of reasons for a trademark to be declared invalid: first, the absolute prohibition of registration on the grounds of non-compliance with legality, distinctiveness and non-functionality. Second, obtaining registration by deception or other improper means, these two categories namely
The situation stipulated in Article 44(1) of Trademark Act : "Where a registered trademark violates the provisions of Articles 10, 11 and 12 of this Law, or where the registration was obtained by deceptive means or other improper means, the Trademark Office shall declare the registered trademark to be invalid; and other units or individuals may request the Trademark Review and Adjudication Board to declare the registered trademark to be invalid. " Thirdly, the situation that may damage the prior right of exclusive use of the trademark or other prior rights, i.e.
circumstances set forth in Article 45(1) of the Trademark Law, commonly referred to as relative prohibited grounds for registration. Circumstances that do not comply with legality, distinctiveness and non-functionality or where registration was obtained by deception or other improper means.
For example, a prior right holder fails to notice the preliminary notice of a trademark and fails to file an opposition within the stipulated three-month period, resulting in the approval of the registration of a trademark that may harm its prior rights. At that point, the prior right holder can initiate a proceeding to request the declaration of an improperly registered trademark, requesting that the registered trademark be declared invalid. The same situation also occurs in the process of preliminary examination by the Trademark Office, where the examiner may, due to a momentary oversight, or due to the fact that he or she cannot fully grasp the situation of a certain industry, cause a certain trademark, which is not originally distinctive, to pass through the preliminary examination and eventually be registered as a trademark. In such cases, the Trademark Office has the right to initiate the procedure of invalidation of improper registration and declare the registered trademark invalid. Other people can also apply to the Trademark Review and Adjudication Board to initiate the procedure of declaring the registered trademark invalid.
Source: China Intellectual Property Rights Defense Assistance Network
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