“商标恶意抢注”概念认定研究
Research on the Concept Recognition of “Malicious Rushing to Trademark Registration”

商标对于商事主体开展商业活动具有重要作用，“商标恶意抢注”这一概念尚未直接见诸于我国立法，但在已在实务中得到了广泛应用。根据《商标法修订草案(征求意见稿)》(2023年版)表明该概念或将入法，可见其重要性。但目前该概念的内涵与外延尚不够稳定，因此需要厘清其认定方式，帮助商事主体规划商标布局与规避侵权风险。对“恶意抢注”从主、客观要件，以及应然、实然层面展开综合研究，并区分“恶意注册”与“恶意抢注”这两者的区别点。综合分析条文、案例与论文可知，法律以负面清单的形式载明了多种“恶意”，案例和论文也展现出了“抢”的共同点，即擢取或损害了他人合法利益，这两点便是构成商标恶意抢注的关键要件。
Trademarks play an important role in the commercial activities of commercial entities. The concept of “malicious rushing to trademark registration” has not yet been directly seen in China’s legislation, but has been widely applied in practice. According to the “Draft for Comments on the Revision of the Trademark Law” (2023 Edition), it is indicated that this concept may be incorporated into the law, indicating its importance. However, the conception’s connotation and extension are not yet stable enough. Therefore, it is necessary to clarify its recognition method, help commercial entities plan their trademark layout and avoid infringement risks. Conduct comprehensive research on “malicious rushing to registration” from the subjective and objective elements, as well as the expected and actual levels, and distinguish the differences between “malicious registration” and “malicious rushing to registration”. Based on a comprehensive analysis of the articles, cases, and papers, the law contains various forms of “malice” in the form of a negative list. The cases and papers also demonstrate the common point of “rushing to register”, which is to extract or harm the legitimate interests of others. These two are the key elements that constitute malicious rushing to trademark registration.