In the practical work of trademark law, when encountering issues such as whether the use or sale of a registered trademark before it is declared invalid constitutes an infringement of another party's trademark exclusive rights and whether administrative penalties should be imposed, due to the lack of clear legal provisions, there is often confusion and difficulty in handling such cases in practice. In response to these problems, Sunshine IP submitted a "Government Information Disclosure Application" through the government information disclosure platform of the National Intellectual Property Administration, requesting an authoritative interpretation from the National Intellectual Property Administration on the above issues and hoping for the public disclosure of relevant documents.

Recently, the Government Information Disclosure Office of the National Intellectual Property Administration issued a "Government Information Disclosure Response Letter" in accordance with relevant regulations, and at the same time attached the "Reply of the National Intellectual Property Administration on Whether Administrative Penalties Should Be Imposed for Infringing Others' Trademark Rights Before a Trademark Is Declared Invalid After Registration" (Guo Zhi Fa Bao Han Zi [2021] No. 155) to our company.

The reply points out: Article 46 of the Trademark Law of the People's Republic of China stipulates that "If, upon the expiration of the prescribed period, the party concerned does not apply for a review of the decision of the Trademark Office to declare a registered trademark invalid or does not file a lawsuit with the people's court against the review decision of the Trademark Review and Adjudication Board to maintain the registered trademark or declare it invalid, the decision of the Trademark Office or the review decision or ruling of the Trademark Review and Adjudication Board shall become effective." Article 47, Paragraph 1 stipulates that "A registered trademark declared invalid in accordance with the provisions of Articles 44 and 45 of this Law shall be announced by the Trademark Office, and the exclusive right to use the registered trademark shall be deemed to have never existed." Article 33, Paragraph 2 of the Administrative Penalty Law of the People's Republic of China stipulates that "If a party has sufficient evidence to prove that it had no subjective fault, no administrative penalty shall be imposed."

According to the above provisions, the National Intellectual Property Administration holds that: after the decision or ruling to declare a registered trademark invalid takes effect, the exclusive right to use the registered trademark shall be deemed to have never existed. If the registrant or licensee of the trademark engages in any of the acts stipulated in Article 57 of the Trademark Law during the period from the approval of the registration of the trademark to the declaration of its invalidity, it shall be regarded as an infringement of the exclusive right to use the registered trademark.

At the same time, if the registrant or licensee of the trademark has no subjective fault, no administrative penalty shall be imposed; if there is subjective fault such as malice, it shall be dealt with in accordance with the provisions of the second paragraph of Article 60 of the Trademark Law.

In addition, whether there is subjective fault should be judged by comprehensively considering the subjective state of the original trademark registrant at the time of application for registration, the actual use after approval of registration, the facts and reasons on which the invalidation is based, etc.