Apple
company litigated a Chinese company who had registered the name
“iPad” as trademark in China. But finally Apple ended up the
litigation with reconciliation in which Apple buys the trademark
“iPad” from the Chinese company by money. Observing the case, lay
public may think that the Chinese company is dishonorable and
unpardonable. Actually, there are many comments on newspapers and web
to accuse the Chinese company and also Chinese government. But, in
point of fact, to accuse the Chinese company is wrong. It is
understandable that layman attempt to think stereotyped such that
China is uncivilized and Chinese are selfish. In spite of these
layman's thought, nowadays Chinese government procedure of trademark
registration is exact and reliable as same as USA or Japan. Also,
nowadays Chinese litigation system works with strict fairness once a
litigation officially occurs. In such social situation, Apple finally
paid money to the Chinese trademark holder. It means Apple was
defeated on the litigation substantially. It also means that, in the
fair social rule, the Chinese company is right and reasonable.
Although there is criticism that “Apple paid money because Apple
hated long-time pending litigation.”, the criticism is also
inappropriate thought of man who doesn't know legislation system
well.
The
true and essential problem exists in another place. The true problem
resides in the trademark laws which most countries in the world use.
The first problem is “first file” system. First come, first file. Government should give trademark right to the person who file an application of a product name first to the government when the name is not yet in the market place in the country. The government has given the applicant the trademark right without regard to whether the applicant actually use the name or not in the marketplace. This government procedure can be done with the official fee less than one thousand dollars in many countries. It is so cheap. Then, many people get many names as trademark right and keep them without using them not only in China but also in many other countries.
The first problem is “first file” system. First come, first file. Government should give trademark right to the person who file an application of a product name first to the government when the name is not yet in the market place in the country. The government has given the applicant the trademark right without regard to whether the applicant actually use the name or not in the marketplace. This government procedure can be done with the official fee less than one thousand dollars in many countries. It is so cheap. Then, many people get many names as trademark right and keep them without using them not only in China but also in many other countries.
Then,
as the countermeasure against these “sleeping” trademarks, most
governments made a rule to cancel the trademark when it is not used.
This is called cancellation by no-use. But, the second essential
problem is the cancellation by no-use is very lax stipulation in most
of countries. At first, the moratorium period is three (3) years in
many countries. If the owner of the trademark has not used it for 3
years, third party can raise a petition for cancellation. In other
words, the owner of trademark does not need to use it nearly 3 years.
This moratorium period is too long. And, moreover, it is also big
problem that very superficial evidence can be submitted as a proof of
actual use of trademark. It is all right if the owner has placed a
small advertisement on a local newspaper only once in the 3 year. Or,
it is all right if the owner has submit an invoice on which the
trademark is described once in the 3 year. With one of these
evidence, the owner can maintain his trademark right continuously. If
the actual trading activity is same as these evidence, it is
substantially same as no-use. Hence, superficial “first file”
system and lax cancellation system make enormous sleeping trademarks
which we (or government) do not have to protect.
The
above situation is not only in China but also many other countries.
Such system and situation is the true problem. Then, before you
criticize that Chinese companies, you must think about this essential
problem of trademark legislation system.
