Asia IP

The growth of ecommerce and social media has brought about another issue: bad faith.

Bad faith has been an issue in many countries for a long time, said Lena Shen, a partner with Beijing Sanyou Intellectual Property in Beijing. China has no definition of bad faith, she said, adding that it was difficult to object solely on the grounds of bad faith. Shen was speaking at the 2017 AIPPIASEAN Regional Meeting in Manila in April.

Despite the lack of a proper definition for bad faith, there are still ways you can protect yourself against bad faith, she said. Opposition remains an option for trademarks in examination, as is an invalidation action for trademarks already registered. Non-use cancellation is available for trademarks over three years old, and assignment is also available.

“Despite the lack of pure bad faith grounds, using other articles is making bad faith registrations easier to block,” said Shen. 

Similarly, although there is no definition of bad faith in Vietnam, the phrase “dishonesty” is mentioned in a provision on statutory limitations for initiating a trademark invalidation, said Nguyen Thi Thu Ha, a partner with Vision & Associates in Hanoi. However, the terms don’t overlap exactly, and the lack of a proper definition is a disadvantage.

Previously the definition of dishonesty only covered untruthful information in filings, which was too narrow a definition for modern complex cases, said Nguyen, but the definition has evolved to a more openminded approach not restricted to just untruthful filings.

The Philippines also has no definition of bad faith within trademark law, but bad faith is defined in Philippine jurisprudence, lawyers told the audience. 

So, would a definition be useful? Yes, said Shen, who said that “a clear and universal definition would be great,” but questioned whether lawmakers around the world would be about to come up with a universal definition that works in multiple cultures and multiple languages. It was noted that AIPPI has done a lot of work on defining bad faith, and one option may be to just adopt that definition into local legislation.