"Entering the WTO" is undoubtedly a great impact for China. It brings us both opportunities and challenges. From the perspective of intellectual property protection, "joining the WTO" means that my country must fully implement the TRIPS Agreement, which will promote my country's intellectual property protection work to enter a new stage. As an important part of intellectual property protection, trademark protection will face many new topics and tasks, which can be summarized in the following three aspects:
1. Timely revision of the Trademark Law
The basic premise of trademark protection is to have a sound legal system. After joining the WTO, an urgent task we are currently facing is to revise the current Trademark Law. As we all know, the current Trademark Law was enacted in 1982 and came into effect in 1983. A minor revision was made in 1993. Over the past 17 years, this law has played an important role in protecting trademark exclusive rights, maintaining market order, encouraging fair competition, protecting the legitimate rights and interests of consumers, and promoting the healthy development of my country's commodity economy. However, compared with 17 years ago, today's international and domestic situations have undergone profound changes. The current Trademark Law is no longer able to adapt to the changed situation and should be revised.
From an international perspective, my country has successively joined four international treaties since 1985: the Paris Convention, the Madrid Agreement on the International Registration of Trademarks, the Protocol Relevant to the Madrid Agreement and the Nice Agreement. , and has signed the TRIPS Agreement and the Trademark Law Treaty. These treaties have put forward various specific requirements for member states. Although we have partially satisfied these requirements by amending the Implementing Rules of the Trademark Law and formulating departmental regulations, they are not included in the current Trademark Law. Get due and comprehensive reflection.
The principles of "national treatment" and "priority" established by the "Paris Convention" are of very important significance in the international protection of trademark rights; they concern the protection of appellations of origin, official signs, exhibitions The regulations on trademarks and well-known trademarks have increasingly shown their necessity and importance with the rapid development of international trade. The Madrid Agreement and its relevant protocols stipulate the registration and protection of collective marks and certification marks. Its trademark territorial extension registration system provides an effective, economical, convenient and effective way for the international protection of trademarks. The TRIPS Agreement requires member states to strengthen the protection of service marks, expand the scope of protection of well-known trademarks, protect geographical indications, especially wine and liquor geographical indications, and strengthen customs protection, judicial protection and administrative enforcement of intellectual property rights. The Trademark Law Treaty is committed to simplifying the trademark registration process. Its systems of "one mark for multiple categories", "right division" and non-examination of renewals not only facilitate applicants, but also greatly improve the work of trademark confirmation authorities. efficiency. All these principles and systems are clearly stipulated in the Trademark Law. They are not only needed to fulfill international obligations, but also to promote my country's economic construction and foreign trade development.
In the past 10 years, many countries have revised their trademark laws in order to adapt to the needs of the rapid development of global economic integration, welcome the arrival of the knowledge economy, and fulfill their obligations under international treaties such as the TRIPS Agreement. . Many countries, including the United Kingdom, the United States, Germany, Japan, Canada, Australia, Thailand, and Indonesia, have comprehensively revised their trademark laws. Among them, Japan conducted three consecutive revisions from 1991 to 1999. As a result, the gap between my country's current Trademark Law and that of many countries has widened.
From a domestic perspective, my country's economic system reform has basically realized the transformation from a planned economic system to a market economic system. Compared with the early 1980s, the trademark legal awareness of the majority of enterprises has been greatly improved. The number of valid registered trademarks in my country has soared from 30,000 in 1979 to 1.05 million currently. But at the same time, trademark counterfeiting and infringement are becoming increasingly serious, and bans are repeated. The Trademark Law, which was formulated 18 years ago, is no longer able to meet today's needs and is in urgent need of revision. This is mainly reflected in the following five aspects:
First, some gaps need to be filled. In addition to reflecting the contents of the relevant international treaties mentioned above, the current Trademark Law must also provide for some issues that were not considered originally and some new issues that were gradually exposed with the deepening of reform and opening up. .
This mainly includes: cancellation procedures for malicious "squatting" of other people's trademarks, restoration procedures for malicious cancellation of other people's registered trademarks, assisted execution procedures for relevant judicial judgments, pledge registration procedures for trademark rights; border protection issues regarding trademark rights, Inheritance issues and the protection of copyrights, trade name rights and other prior rights.
Secondly, some regulations should be canceled or adjusted. The current Trademark Law was formulated in the early 1980s. Due to the lack of practical experience and insufficient understanding of some issues at that time, some unreasonable regulations resulted. For example, regulations on the mandatory use of registered trademarks for human medicines have resulted in some drugs being unable to be put on the market in time because their trademarks have not been registered, hindering the development of enterprises. A similar situation exists with tobacco products. It is emphasized that the registration system is extremely rare abroad and should be considered to be abolished. For another example, the current Trademark Law does not allow the existence of rights and imposes too strict restrictions on subjects. This makes the interests of some civil rights holders unprotected and some disputes unable to be fairly resolved. Therefore, international conventions should be followed, unnecessary restrictions on entities should be removed, and trademark rights should be allowed to exist under certain conditions.
Third, administrative investigation and punishment methods should be increased to strengthen the protection of trademark rights. With the development of the market economy, trademark infringement cases are increasing day by day, and activities of counterfeiting registered trademarks are rampant. However, the current Trademark Law’s provisions on counterfeiting and infringement are neither rigorous nor comprehensive, and it does not provide the administrative authorities with sufficient and effective investigation methods. The penalties are too weak, and there is a lack of clear provisions on compensation for damages to right holders. As a result, The interests of rights holders cannot be properly protected, and illegal and criminal cases are repeated. If these problems are not resolved in time, they will inevitably damage the seriousness of the Trademark Law and the authority of the law enforcement agencies, and will be detrimental to the development of my country's market economy.
Fourth, the trademark rights confirmation process needs to be improved. According to the provisions of the current Trademark Law, both trademark examination and opposition adjudication stipulate reexamination procedures, while trademark dispute cases and most cases of improper revocation of registration are subject to the first-instance and final adjudication system. This obviously violates the modern legal principle that "appeal should be allowed in any case" and is also incompatible with the relevant provisions of the TRIPS Agreement. Therefore, it must be improved.
Fifth, it is necessary to straighten out the relationship between the Trademark Law and the Implementing Rules of the Trademark Law. The current Trademark Law only has 43 articles, which is 1/4 of the new German Trademark Law and less than 1/6 of the new Australian Trademark Law. Due to the influence of the guiding ideology of "it should be rough rather than detailed" in legislation in the early stage of reform, many regulations are too principled and lack operability. The revision in 1993 only involved individual provisions and did not fundamentally solve the problem. In order to adapt to the needs of the deepening of reform and opening up, the State Council has made many revisions to the "Implementation Rules" in accordance with the authorization of the third session of the Sixth National People's Congress. As a result, there are many provisions in the revised "Details" that cannot find the corresponding basis in the "Trademark Law". For example, the Trademark Law does not provide for administrative review procedures, but according to the provisions of the "Details", administrative cases must first apply for administrative review before filing a lawsuit in court. Such conflicting regulations often cause controversy in practice and should therefore be straightened out as soon as possible.
2. Strengthen trademark law enforcement and optimize competition
A sound legal system is an important prerequisite for implementing trademark protection, but it is only the first step in trademark protection. Whether a trademark can ultimately be effectively protected depends crucially on whether various specific provisions of the law can be effectively followed. Therefore, we must take various effective measures to strengthen trademark enforcement. Strengthening trademark law enforcement and optimizing the competitive environment is not only a basic requirement of the TRIPS Agreement, but also an important measure for my country's opening up to attract foreign investment. In fact, a good intellectual property protection environment is indeed of great significance in increasing the confidence of foreign investors.
Since the implementation of the current Trademark Law, the trademark authorities have accumulated a lot of experience in strengthening trademark administrative enforcement, including implementing all-round trademark supervision in all aspects of production, circulation, printing, licensing, etc., to effectively prevent and promptly investigate and deal with trademark violations. Infringement and counterfeiting; carry out key rectifications in areas where counterfeiting and counterfeiting are common; carry out key investigations and punishments for enterprises with serious counterfeiting and infringement activities, especially those that engage in counterfeiting and infringement activities and refuse to mend their ways; carry out key investigations and punishments for wholesale markets, specialty stores, agents and other distributors In this link, special supervision and rectification shall be implemented; verification of trademark printing units and law enforcement inspections of non-trademark printing units shall be carried out, and trademark supervision shall be carried out at commodity exhibitions and commodity trading markets. These practices have indeed played an important role in strengthening trademark law enforcement, optimizing the competitive environment, and promoting economic development, and should continue to be upheld and carried forward.
3. Improve enterprises’ awareness and ability of trademark protection
Joining the World Trade Organization is a great promotion for my country’s market economy construction. After joining the WTO, domestic enterprises are faced with It will not only be competition in the domestic market, but more importantly, it will face competition in the international market. Some large foreign multinational groups will also rely on their strong economic strength and strong technical strength to seize the Chinese market, which will subject domestic enterprises to unprecedented competitive pressure. To survive and develop, Chinese enterprises must know how to rely on technological progress and innovation, and be good at using various business strategies and tactics, but they must also know how to use and protect trademarks. How to quickly and significantly improve the ability and level of Chinese enterprises to master and apply trademark strategies to adapt to the needs of post-WTO development is also an urgent task before us and should attract great attention from all walks of life. Over the years, while paying close attention to law enforcement, the trademark authorities have also attached great importance to the promotion of trademark laws, which has greatly improved the awareness of trademark protection among enterprises. After joining the WTO, this work will continue to be strengthened. At the same time, we must continue to actively promote the reform of the trademark agency system so that it can continuously improve the quality and level of trademark legal services provided to enterprises and adapt to the actual needs of the new situation.
In short, the trademark field after joining the WTO is full of opportunities and challenges. Only by seizing the opportunities and meeting the challenges can we promote the development of China's trademark system and promote China's trademark protection work. A new stage.