Bad-faith filing in China - An examination of China’s legislation and enforcement on bad-faith trademark filings
(2019) JURM02 20192Department of Law
Faculty of Law
- Abstract
- Bad-faith filing is a common misconduct where an infringer registers a trademark that is identical or confusingly similar to another trademark or to someone’s prior rights in order to prevent the trademark from entering the market or to gain profit by taking advantage of the brands existing reputation and business strategy. As an infringed party may only attain damages where bad faith can established, it is important to examine what constitutes bad faith in the Chinese legislation. This thesis aims to examine what constitutes bad faith in the Chinese national legislation and whether the legislation is coherent with the TRIPS Agreement. This thesis applies a legal dogmatic method in order to establish how bad faith is applied in current... (More)
- Bad-faith filing is a common misconduct where an infringer registers a trademark that is identical or confusingly similar to another trademark or to someone’s prior rights in order to prevent the trademark from entering the market or to gain profit by taking advantage of the brands existing reputation and business strategy. As an infringed party may only attain damages where bad faith can established, it is important to examine what constitutes bad faith in the Chinese legislation. This thesis aims to examine what constitutes bad faith in the Chinese national legislation and whether the legislation is coherent with the TRIPS Agreement. This thesis applies a legal dogmatic method in order to establish how bad faith is applied in current legislation, de lege lata, and provides a discussion on how it should be applied, de lege ferenda. This thesis finds that bad-faith filings in Chinese trademark legislation is interpreted restrictively based on objective grounds connected to specific circumstances and lacks an assessment of the infringers subjective intentions and whether the infringer should have known of the infringing nature of the action. Further this thesis finds that the Chinese legislation on bad-faith deviates from the TRIPS Agreement regarding the determination of damages in case of an infringement. In order to stop bad-faith filings this thesis suggests that bad faith is interpreted to include an assessment of what can reasonably be expected of an infringer. (Less)
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http://lup.lub.lu.se/student-papers/record/9000445
@misc{9000445,
abstract = {{Bad-faith filing is a common misconduct where an infringer registers a trademark that is identical or confusingly similar to another trademark or to someone’s prior rights in order to prevent the trademark from entering the market or to gain profit by taking advantage of the brands existing reputation and business strategy. As an infringed party may only attain damages where bad faith can established, it is important to examine what constitutes bad faith in the Chinese legislation. This thesis aims to examine what constitutes bad faith in the Chinese national legislation and whether the legislation is coherent with the TRIPS Agreement. This thesis applies a legal dogmatic method in order to establish how bad faith is applied in current legislation, de lege lata, and provides a discussion on how it should be applied, de lege ferenda. This thesis finds that bad-faith filings in Chinese trademark legislation is interpreted restrictively based on objective grounds connected to specific circumstances and lacks an assessment of the infringers subjective intentions and whether the infringer should have known of the infringing nature of the action. Further this thesis finds that the Chinese legislation on bad-faith deviates from the TRIPS Agreement regarding the determination of damages in case of an infringement. In order to stop bad-faith filings this thesis suggests that bad faith is interpreted to include an assessment of what can reasonably be expected of an infringer.}},
author = {{Hiekkanen, Salla}},
language = {{eng}},
note = {{Student Paper}},
title = {{Bad-faith filing in China - An examination of China’s legislation and enforcement on bad-faith trademark filings}},
year = {{2019}},
}