1. Incomplete and lagging prior information of trademarks
The main basis of trademark office in trademark examination is to search all kinds of information in the computer database of trademark office. Because the Trademark Office receives a large number of trademark applications every day, and these application materials have to be manually classified one by one and input into the Trademark Office database through scanning, it takes a certain period from the date when the Trademark Office receives all kinds of trademark application documents to retrieval from the computer database. This information input cycle takes 1 ~ 3 months even in the trademark office, and generally takes 3 ~ 6 months for the outside world. This is only the basic information of the trademark application itself, which is often called the blind spot of inquiry. Moreover, the trademark review information also has the lag and incompleteness of information.
Incomplete and lagging information of prior trademarks may lead to errors in trademark judgment in some cases. Even within the Trademark Office, the examiner can't avoid the misjudgment result caused by the lag and incompleteness of this information in his work.
2. Limitations of information sources in active review.
The most complete and reliable information actively examined by the Trademark Office is the trademark registration and application information accumulated by the Trademark Office for many years. Others, such as place names above the county level, certain industries, product information, etc. It should be gradually collected and sorted by the Trademark Office itself, because it is normal for information sources to be passively lagging behind. For information trademark offices such as patent registration and copyright registration, they don't pay attention at all. Only after the obligee finds out in the passive examination during the three-month notice period of trademark preliminary examination can he safeguard his rights and interests through the objection procedure.
The source of information for the Trademark Office to implement administrative active review is limited. Many other prior rights and interests can only be resolved through passive review during the announcement objection period.
3. Errors caused by subjective and objective differences of examiners.
The examination of each trademark registration application is independently completed by each examiner, because different examiners have certain differences in professional scope, knowledge level, work experience and sense of responsibility, and the examination results will be influenced by many subjective and objective factors. For the same type of case, different examiners and different kinds of examiners may get diametrically opposite judgment results, and the law also gives the examiners the discretion to exercise according to their personal understanding in the process of examination.
Generally speaking, trademark examination is a highly subjective work, so it is inevitable that there will be differences.
4. The periodicity of national laws, regulations and policies leads to changes in review standards.
Since China promulgated the Trademark Law in 1983, the relevant trademark laws, regulations and policies have been in the stage of dynamic development and adjustment with the development of market economy and the emergence of new topics, and this dynamic adjustment will still be inherited for quite some time, which will inevitably affect the examination standards. People who have been in contact with trademarks for a long time should know that most of the trademarks that can be registered according to the past standards are unregistered trademarks now, and they were unregistered trademarks in the past, and many of them can be registered now.
In particular, the administrative regulations and policies of China, in most cases, often bear the imprint of the times and change with time. Therefore, if we don't understand the changes and trends of policies, but look at trademarks and censorship standards in a static and isolated way, our understanding and judgment will be biased.
5. Differences in evaluation criteria for different kinds of goods or services.
As the saying goes, "things are dead, people are alive", and it is often appropriate to apply it to trademark examination. Because, of course, trademark law and trademark examination standards seem to be the same scale, but in practice, they can indeed derive ever-changing understanding and application. For a unified trademark, there will be great differences in the way of identifying trademarks, the degree of attention, the possibility of confusion and so on. In different trade industries, different products and services, different customer groups, different consumption levels, different market channels, different sales targets, different ways of use, different geographical restrictions, etc. Therefore, in the examination of trademark substance, the examination standards of different kinds of goods or services, even on the same kind of specific goods, can be different. However, there will be deviations in mastering this standard, and even examiners will sometimes have great differences. The resulting risk of disagreement is uncertain and inevitable.
6. There is objection risk during the announcement period.
China's Trademark Law stipulates that a trademark applying for registration has a three-month notice period after it has been preliminarily examined and approved by the Trademark Office. Within three months from the date of announcement, the prior obligee, interested party and other relevant personnel may raise objections to the trademark in accordance with relevant laws and regulations.
During the three-month announcement period, the prior obligee or interested party may raise objections due to the protection of well-known trademarks, registered trademarks, similar trademarks, prior applications, etc. In addition, because the trademark does not have obvious characteristics, anyone can raise an objection to the trademark office. Once a trademark is questioned, it will enter a long objection procedure. After receiving the objection, the Trademark Office will let the applicant reply, and then make a ruling on whether to approve or not based on the comprehensive materials. If the Trademark Office refuses to accept the ruling on the objection, it may further review the trademark objection until the court proceedings.
Trademark objection is the right given to citizens and enterprises by law. Anyone who has basic subject qualifications and justified reasons can raise objections. Therefore, the appearance of trademark opposition, in addition to safeguarding their legitimate interests, may be a means of malicious competition by competitors. At this point, the risk of dissent during the announcement period is also very large.
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