The similarities and differences between the Trips Agreement and the Trademark Law, Patent Law, and Anti-Unfair Competition Law
1. Definition and Legal System
The "TRIPS" Agreement is the " The abbreviation of the Agreement on Trade-Related Aspects of Intellectual Property Rights. It is an international treaty and agreement.
Trademark law: a general term for the legal norms that confirm the exclusive right to trademark and stipulate the registration, use, transfer, protection and management of trademarks. my country's trademark law falls under the category of intellectual property law
Patent law: Patent law confirms that the inventor (or his successor) has exclusive rights to his invention and stipulates the rights and obligations of the patentee. The general term for legal norms. my country's patent law also falls under the category of intellectual property law
Anti-Unfair Competition Law: The Anti-Unfair Competition Law of the People's Republic of China and the State is a law aimed at regulating the socialist market economic order and advocating fairness and equity. competition laws. This law is of great significance for protecting the rights and interests of legitimate market participants and combating illegal market economic behaviors. Belongs to the category of economic law
2. Trips Agreement and Trademark Law
Comparative study of the Agreement on Trade-Related Aspects of Intellectual Property Rights and China’s Trademark Law
Same as others Like civil or commercial regulations, TRIPS (Trade-Related Aspects of Intellectual Property Rights) has both mandatory and optional provisions. Fulfilling the mandatory provisions in TRIPS to the letter is an international obligation as a WTO member; for the optional provisions in TRIPS, although each member can make any choice, any choice should be scientific and appropriate. choice. Comparing the relevant TRIPS rules with my country's trademark law will help promote the complete consistency between my country's trademark law and the mandatory provisions of TRIPS, and make scientific and appropriate choices about the optional provisions of TRIPS.
In the Uruguay multilateral trade negotiations initiated by the international community in 1986, trade-related intellectual property rights issues were included in the negotiations, and eventually the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was formed. Like other civil or commercial regulations, TRIPS contains both mandatory and optional provisions. Fulfilling the mandatory provisions in TRIPS to the letter is an international obligation as a member of the WTO, and it is also our country's commitment to join the WTO; for the optional provisions in TRIPS, although each member can make decisions based on its own country's historical traditions and legislative concepts. Any choice, but any choice should also be a scientific choice. This article compares the relevant TRIPS rules with my country's trademark law, aiming to discover the gaps, achieve complete consistency between my country's trademark law and the mandatory provisions of TRIPS, and make scientific and appropriate choices for the optional provisions of TRIPS. The comparison between the relevant TRIPS rules and my country's trademark law is planned to start from the following four aspects:
1. Regarding the conditions for trademark registration
In most countries in the world today, registration is a matter of obtaining The only way to obtain trademark rights. So does our country. However, it is true that a few countries, such as the United States and the United Kingdom, follow their own traditions and use “trademark commercial use” as a way to obtain trademark rights. Although there are fewer and fewer such countries, they still exist. Therefore, the TRIPS Agreement takes care of this existing fact① and does not force the acquisition of trademark rights to be registered②. However, the more detailed provisions of the TRIPS Agreement on the conditions for trademark registration show that TRIPS respects and directionally supports the principle of registration, which is the way to obtain trademark rights commonly adopted by most countries.
According to the TRIPS Agreement, there are four conditions for trademark registration:
(1) Distinctiveness Article 15, paragraph 1, of the TRIPS Agreement states: “Any trademark that can distinguish the goods or services of one enterprise from those of other enterprises. Any open mark or combination of marks can be constituted as a trademark... When certain marks cannot distinguish the relevant goods or services due to their inherent characteristics, members can also grant them registrability based on the distinctiveness produced by their use. "This article shows that the trademark applied for registration should be distinctive or distinctive. Otherwise, it will be difficult to distinguish the goods or services of one enterprise from those of another enterprise, and therefore it will be difficult to obtain registration. When certain marks cannot distinguish the relevant goods or services due to their inherent characteristics, they can also be registered if they become distinctive during long-term use. For example, the "Wuliangye" wine produced by my country's "Yibin Wuliangye Co., Ltd." is brewed from five types of grains, namely "sorghum, rice, glutinous rice, wheat, and corn", mixed with water. "Wuliangye" is a descriptive term, which directly shows that the wine is brewed from five kinds of grains. Strictly speaking, the trademark lacks distinctiveness and is difficult to use as a wine trademark. However, in the long-term use process, "Wuliangye" has become a proprietary mark of a specific product of a specific enterprise. At this time, the trademark has distinctiveness, and according to the provisions of TRIPS, the trademark is registrable. The distinctiveness of a trademark, also known as distinctiveness, refers to the specificity of the trademark itself. Only when a trademark is distinctive can it realize the function of a trademark and achieve the purpose of distinguishing similar goods or services provided by different enterprises. The distinctiveness requirements of TRIPS for trademarks have been fully absorbed by the newly revised Trademark Law in 2001. Article 9 of the new Trademark Law stipulates: "The trademark applied for registration shall have distinctive features that are easy to identify..." In addition, Article 11, paragraph 1, while enumerating signs that lack distinctive features shall not be registered as trademarks, It is also emphasized in paragraph 2 that “the signs listed in the previous paragraph that have acquired distinctive features through use and are easy to identify may be registered as trademarks.”
(2) Visually perceptible Article 15 of the TRIPS Agreement Paragraph 1 of the Article also states: "Members may require that a mark be visually perceptible as a condition for registration." "Visually perceptible" trademarks, of course, exclude "sound trademarks" and "smell trademarks" and other trademarks that cannot be visually perceived. However, it should be noted that when Article 15 of TRIPS stipulates this requirement, it uses “may” instead of “shall”. It can be seen that this requirement is not mandatory and member states are allowed to choose. That is to say, each member can pass legislation to make "visually perceptible" a condition for trademark registration, or it may not make this requirement. my country's trademark judicial practice has long required that trademarks applied for registration must be visually perceptible. The new Trademark Law also clearly stipulates that the trademark applied for registration must be a "visible" mark. These practices and regulations are consistent with the requirements of the above provisions. It is necessary to mention that in the past, our understanding of trademarks was too narrow. For a long time, it was limited to visible signs such as "text, graphics and their combinations", while other such as three-dimensional trademarks were excluded. This is the main gap with TRIPS. The new Trademark Law corrects this, stating that “any visible mark that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numbers, three-dimensional marks and color combinations, as well as the above Any combination of elements can be applied for registration as a trademark”③. This provision expands the scope of trademark protection and is further consistent with the requirements of TRIPS. Among them, "three-dimensional logo" refers to a three-dimensional trademark, which should not only include the unique product appearance and outer packaging, but also include the unique appearance decoration of commercial service venues, etc.④. Currently, only a handful of countries in the world recognize and protect non-image trademarks such as “sound” and “smell”.
(3) The trademark has been put into commercial use. Article 15, paragraph 3, of the TRIPS Agreement stipulates that “Members may rely on use as a condition for registration, but may not use the actual use of the trademark as a condition for submitting a registration application...” “Members may "Reliance on use can be used as a condition for registration", which means that each member can pass legislation to make "the trademark has been put into commercial use" as the prerequisite for the trademark to be approved for registration. In other words, members can refuse to register a trademark if it has not yet been put into commercial use. It should be noted that this provision is not mandatory but is only guiding. In other words, this clause is a guiding optional clause. my country’s trademark law has not been affected by this guiding provision and insists on adhering to the long-standing practice of not making use a prerequisite for trademark registration. Not only that, trademarks used on some goods, such as "drugs for human use" and "tobacco products", are required to be registered before use. Although my country's above-mentioned practices do not violate the requirements of TRIPS, the actual results are full of disadvantages. Just imagine, a trademark has never been used in commerce, and its market effect is unknown. It must be registered first and then used. Its blindness and risk are obvious. After such a trademark is registered, it is very common to abandon it because the market effect of the trademark is found to be unsatisfactory during use. This kind of "noted but not used" junk trademarks not only directly indicates the profit loss of the operators⑤, but also brings a certain burden and confusion to trademark management. In addition, there are no usage requirements for applicants when registering trademarks, which also contributes to the large number of malicious trademark registrations that exist in reality. Therefore, the author believes that when applying for trademark registration, the applicant should be required to submit proof that “the trademark has been put into commercial use”, or at least be required to submit “proof of intention to use”, that is, proof that the trademark is intended to be put into use. Some people may say that even so, human drugs and tobacco products should be treated as exceptions, because human drugs and tobacco products are closely related to people's life and health, and the management of these commodities must be strengthened. Yes, in the past we have required the above-mentioned trademarks to follow the principle of “register first and then use” under the banner of “strengthening management”. This seemingly reasonable provision cannot withstand careful scrutiny. In our country, human medicines and tobacco products, which are related to people's lives and health, all have their own business supervision and inspection departments. Why bother with the Trademark Office? This kind of "important measure" titled "strengthening management" actually has obvious planned economy overtones. The result will only be the inseparation of responsibilities and the overlapping of responsibilities. Therefore, the author believes that these goods should be the same as other goods. Whether to use trademarks and whether to register their trademarks should completely depend on the wishes of the parties. The law should not be mandatory, especially the trademarks on these goods should not be forced to be registered before use. . “The actual use of a trademark shall not be used as a condition for filing a registration application”, that is to say, even if the trademark has not been put into actual use, you can still apply for registration of the trademark. This provision is a mandatory requirement of TRIPS, and it is also a system that has been implemented in my country since the promulgation and implementation of the Trademark Law in 1982. However, it is necessary to mention that in some countries where use is a condition for trademark registration, such as the United Kingdom and the United States, their legislation often further states that after a trademark registration application is filed, the application date is the priority date, and the trademark is put into actual use. After that, it will be registered or the registration will take effect. After the filing date is determined, the application excludes subsequent similar applications from others.
(4) Shall not damage existing prior rights. Article 16, paragraph 1, of the TRIPS Agreement states that the registration of a trademark “shall not damage any existing prior rights.” This provision is mandatory and members have no choice. TRIPS does not explain “existing prior rights”.
However, in the revision process of the Paris Convention, in the discussions of some non-governmental international industrial property rights organizations and in the WIPO model law, there was a relatively consistent view that at least the following rights should be included: (1) Already protected manufacturer's name rights (Also known as "trade name right"); (2) The exclusive right of industrial design that has been protected; (3) Copyright; (4) The right of geographical indication that has been protected; (5) The right of name; (6) Portrait rights; (7) commercialization rights. As early as 1993, when my country revised the Implementing Rules of the Trademark Law, it had already introduced the protection of "prior rights" into it. However, the level of protection of "prior rights" at that time was not as good as the requirements of TRIPS. The main difference lies in the fact that China's Trademark Law and Implementing Rules both emphasize the "subjective state" of the perpetrator, that is, the infringement of prior rights must be based on the subjective malice of the perpetrator, such as "by deception or other unfair means". Emphasizing the subjective state of the perpetrator undoubtedly creates obstacles for the prior right holder to stop the infringement. TRIPS does not regard the subjective state of the actor as a prerequisite or requirement for the protection of prior rights. In other words, as long as the actor's trademark conflicts with the prior rights of others, the registration and use of his trademark will be prohibited even if the actor has no prior knowledge. The newly revised Trademark Law improves the level of protection of "prior rights", cancels the requirement for the perpetrator's "subjective state", and clearly stipulates that "applications for trademark registration shall not damage the existing prior rights of others"⑥. This article shows that if the trademark applied for registration conflicts with the prior rights of others, the registration will not be allowed regardless of its subjective status. This amendment makes my country's trademark legislation consistent with the provisions of TRIPS.
II. Regarding the scope of rights of registered trademark owners
Article 16, paragraph 1, of the TRIPS Agreement is a general description of the scope of rights of registered trademark owners. This paragraph states: “The owner of a registered trademark shall have the exclusive right to prevent any third party without its permission from using the same or similar signs in trade to identify goods or services that are identical or similar to the goods or services with the registered trademark. Services, if such use creates the possibility of confusion. If the same mark is used for the same goods or services, the possibility of confusion should be presumed..." This provision is clearly affirmative and is not selective. Once a trademark is successfully registered, the owner of the registered trademark can enjoy exclusive rights to the trademark. The general requirement for this exclusive right is that without the permission of the registered trademark owner, no one may use in trade a trademark that is identical or similar to the registered trademark to mark the same or similar goods (or services). This part of TRIPS The spirit is consistent with my country's current trademark law. The difference is that after TRIPS makes the above provisions, it is followed by a conditional clause, "If such use will cause the possibility of confusion." This means that if any third party is unlikely to cause confusion about the goods or services during the relevant use, If there is confusion, use is still allowed and does not constitute infringement. For example, A (registered trademark owner) runs a bread business in place A, and B runs a bread business in place B. The trademarks used by A and B are similar, but because the two places are far apart and the bread sales areas are different, it is impossible for A and B’s products to be confused. . In this case, B's behavior does not constitute infringement. In short, according to the TRIPS Agreement, in addition to "the use of the same mark on the same goods or services" should directly infer the possibility of confusion, other such as the use of similar marks on the same goods or services, or the use of the same mark on similar goods or services, etc. , it should be determined based on the actual situation whether it will cause confusion, and it cannot be deemed as infringement without analysis. Looking at my country's trademark law, it has long been stipulated that anyone who "uses a trademark that is identical or similar to the registered trademark on the same or similar goods without the permission of the trademark registrant"⑦ will be deemed to infringe the exclusive rights of the registered trademark. . It can be seen that at this point, my country's protection level for registered trademarks is higher than the requirements of the TRIPS Agreement. Is it necessary to set such high standards in our country? The author holds a negative attitude.
The reality of my country's vast territory shows that if two companies are far apart and their respective product marketing areas are different, and another company uses a similar trademark to mark the same goods, or uses the same trademark to mark similar goods, it will not necessarily result in a dispute between the goods or services. of confusion. Therefore, it is unscientific and contrary to the unified standards of TRIPS to unanimously identify such behaviors as infringement without analysis.
3. Exceptions to trademark rights
TRIPS Article 17 stipulates exceptions to trademark rights. “Members may provide for limited exceptions to the rights conferred by trademarks, such as fair and The use of descriptive words, etc., provided such exceptions take into account the legitimate interests of the trademark owner and third parties.” Typically, descriptive words are refused registration as a trademark due to lack of distinctiveness. However, if the descriptive term becomes distinctive through use, it can be registered as a trademark. According to Article 17 of TRIPS, even if these descriptive words obtain trademark registration, they cannot prevent others from using them properly. Rujia catering company operates distinctive Chaozhou cuisine and registered the "Chaohaowei" service trademark with the Trademark Office, thus gaining exclusive rights to the trademark. B is also a restaurant that sells Teochew cuisine. He puts up a billboard in front of his store with the slogan "Teochew cuisine, delicious". According to the TRIPS Agreement, Restaurant B does not constitute infringement of A's trademark. The difference between my country's current Trademark Law and TRIPS is that there is still no word on exceptions to trademark rights. Although the "Regulations for the Implementation of the Trademark Law" make up for this shortcoming of the "Trademark Law" to a certain extent, it stipulates that "the registered trademark contains the common name, graphics, model of the product, or directly represents the quality, main raw materials, and functions of the product. , purpose, quality, quantity and other characteristics, or contains place names, the owner of the exclusive right to a registered trademark has no right to prohibit others from legitimate use."⑧ However, this kind of enumeration is not entirely suitable for non-case law countries. In a non-case law country like my country, it is far from enough for laws to regulate certain types of issues in an enumerated manner. Because judges do not have the power to "make law" and are powerless to deal with gaps in the law, they can only handle cases according to established laws. Unlike cases in countries with case law, judges can use their power to "make law" for issues that have not yet been listed. Make amends. Therefore, it is undoubtedly more suitable for the actual needs of our country's trials to provide a general explanation of the exceptions to trademark rights in the Trademark Law, or to adopt a general and enumerated approach.
3. Trips Agreement and Patent Law
See PDF "Comparison of my country's Patent Law and Enforcement Practices with the Requirements of the TRIPS Agreement"
4. Trips Agreement and Anti-Unfair Competition Law
1. Different requirements depending on whether it constitutes a trade secret
For details, please refer to "Comparison of Undisclosed Information in the Trips Agreement and What constitutes a trade secret in my country"
2. PDF: "Improvement of my country's Anti-Unfair Competition Law_Refer to Article 10-2 of the Paris Convention_Trips Agreement and WIPO Model Clauses" You can find many similarities and differences between anti-unfair competition law and trips