Post-Application Evidence of Bad Faith in China's Trademark Law

Journal of Intellectual Property Law & Practice, Volume 13, Issue 5, Oxford University Press, 2018

The Chinese University of Hong Kong Faculty of Law Research Paper No. 2017-21

9 Pages Posted: 2 Nov 2017 Last revised: 21 Sep 2019

See all articles by Jyh-An Lee

Jyh-An Lee

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Hui Huang

Wanhuida Peksung IP Group

Date Written: November 1, 2017

Abstract

In many jurisdictions, bad faith has become an essential argument against marks registered by squatters. However, determining what constitutes bad faith remains challenging for most trademark practitioners.

The Chinese courts used to opine that only evidence existing before or upon application for a trademark could be used to establish bad faith. In other words, evidence which appeared after the deemed date could not be used for this purpose. However, recent court decisions have begun to consider evidence appearing after the deemed date to determine bad faith.

The experience of domain name dispute resolution and the case law in the EU and US all demonstrate that post-application evidence is occasionally either helpful or necessary to determine bad faith registration. Currently, post-application (or postfiling) evidence is considered by the Chinese courts together with ex ante evidence, mostly constituting knowledge of the mark during the application for registration. We argue that this approach is reasonable from a practical and comparative law perspective.

Keywords: Bad-Faith Registration, Post-Application Evidence, Post-Filing Evidence, Trademark Squatter, China

Suggested Citation

Lee, Jyh-An and Huang, Hui, Post-Application Evidence of Bad Faith in China's Trademark Law (November 1, 2017). Journal of Intellectual Property Law & Practice, Volume 13, Issue 5, Oxford University Press, 2018, The Chinese University of Hong Kong Faculty of Law Research Paper No. 2017-21, Available at SSRN: https://ssrn.com/abstract=3063727

Jyh-An Lee (Contact Author)

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Hong Kong

Hui Huang

Wanhuida Peksung IP Group ( email )

Yiyuan Office Building, Friendship Hotel
No. 1 Zhongguancun Street South
Beijing, Haidian District 100873
China

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