| In the context of the reform of the trademark registration and acquisition system and the addition of the “intent to use” registration condition, it is necessary to analyze the legal attributes of the theoretically possible defenses of non-use of trademarks based on the theory of civil law, so as to solve the problem of the ambiguous application standard of the “defense of three years’ non-use of registered trademarks”, which has been blended into the “defense of indemnity”. The non-use defense should be differentiated into the situations of never-use and situations of continuous non-use. The possibility of constructing a factual defense based on the element that the right has not arisen or has been extinguished or, alternatively, a right of defense should be explored respectively. The so-called “defense of indemnity” is aimed at avoiding the extreme situation caused by the practice of having to determine the amount of damages by projection or discretionary means. However, it presumes that no damage is suffered in all cases of non-use of trademark, which also falls into the trap of mechanically judging the result of damages as “all or nothing”. Non-use of a registered trademark can be characterized as contributory negligence that affects the causal relationship and, as such, be taken into account in the allocation of liability for damages, so as to reveal the real situation of individual cases. |
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