Countries all over the world have different regulations on the confirmation and acquisition of trademark exclusive rights, which can be summarized into three ways: the principle of registration, the principle of use and the principle of mixing. The so-called registration principle is to determine the ownership of trademark rights according to the order of applying for trademark registration. No matter whether the trademark is used or not, whoever applies first will be granted the exclusive right to use the trademark. Application for registration is the only legal fact that forms the exclusive right to use a trademark, so the most basic legal feature of the registration principle is the application for trademark registration. Corresponding to the principle of registration is the principle of use, which determines the ownership of trademarks according to the order of use. Whoever uses the trademark first will enjoy the exclusive right to use the trademark. (Note: Intellectual Property of Civil Law in China, edited by Liu Chunmao, p. 609, China People's Public Security University Press, 1997. There is no need to apply for trademark registration. The principles of registration and use have their own advantages and disadvantages. Using the principle of registration to obtain the exclusive right to use a trademark is convenient for trademark management and trademark owners to distinguish the ownership of a trademark. The legal relationship of trademark right is clear and stable, which is convenient for investigation and evidence collection. Its disadvantage is that it is too rigid, lacks flexibility and cannot protect the prior right to use trademarks. Using the principle of use to obtain the exclusive right to use a trademark fully protects the prior right to use the trademark, which is flexible and practical and can avoid the confusion caused by different users using the same trademark successively. However, due to the lack of stability, it is difficult to verify the evidence of trademark use by trademark users, which is not conducive to trademark management. At present, most countries adopt the principle of registration to obtain and confirm the exclusive right to use trademarks, and only a few countries such as the United States adopt the principle of use. Article 3 of China's Trademark Law stipulates that a trademark approved and registered by the Trademark Office is a registered trademark, and the trademark registrant enjoys the exclusive right to use the trademark and is protected by law. It can be seen that China adopts the principle of registration. It is based on the application for registration as the legal basis for obtaining the exclusive right to use a trademark. Whoever applies for registration first belongs to the exclusive right to use a trademark. Prior use cannot be used as the basis for obtaining the exclusive right to use a trademark. Even if a trademark user has used a trademark in his business, he cannot obtain the exclusive right to use the trademark without applying for registration with the Trademark Office, and the trademark he uses is not protected by law. Therefore, the principle of application only recognizes that the first applicant for trademark registration enjoys the exclusive right to use a trademark, and the legal result of this system provides the possibility and inevitability for trademark registration. We can't identify unfair competition of registered trademarks.
In legislation, China's "Anti-Unfair Competition Law" stipulates that: counterfeiting the registered trademark of others; Unauthorized use of the unique name, packaging and decoration of well-known commodities, resulting in confusion with other well-known commodities, so that buyers mistakenly think that it is the well-known commodity; Unauthorized use of another person's enterprise name or font size, causing people to mistake it for another person's goods; It is an act of unfair competition to forge or fraudulently use quality marks such as certification marks and brand-name marks on commodities, forge the place of origin, and make misleading false representations about the quality of commodities, but it is not stipulated that trademark squatting is an unfair act. The Detailed Rules for the Implementation of the Trademark Law stipulates that the act of registering a well-known trademark by copying, imitating or translating in violation of the principle of good faith belongs to the act of obtaining registration by deception or other improper means. However, there is no definite standard for what is a "well-known trademark", and there are no legal standards and procedures for whether a well-known trademark is a well-known trademark. Whether it can be judged from the level of brand awareness and the amount of advertising expenses is lack of legal basis, which makes most registered trademarks not protected by law.
Theoretically, some scholars believe that it is difficult to identify whether trademark registration is unfair competition, but it is only legal and unreasonable. (Note: Song Jing's On the Phenomenon of Registered Trademarks and the Perfection of the Establishment System of Trademark Rights, Intellectual Property No.3, 1997. The reason is that cybersquatting only has some characteristics of unfair competition. Because although the act of preempting the use of a trademark that others have previously used and created a reputation is a violation of recognized business ethics and the principle of fair competition, and has obtained improper benefits, this part of improper benefits does not constitute damage to the legitimate rights and interests of others, because the law does not stipulate that the rights and interests arising from the prior use of trademarks by others are protected by law. In addition, cybersquatting is not cheating or improper, because if you don't apply for registration first, others can of course apply for registration first and won't crowd out competitors. The law does not stipulate that cybersquatting is illegal, so there is no legal basis for judging cybersquatting as unfair competition. The examination system for obtaining the exclusive right to use a trademark is unreasonable.
There are some unsatisfactory places in the registered trademark examination system in China. First of all, the conditions for trademark registration applicants are too broad. Enterprises, institutions, social organizations, individual partnerships and individual industrial and commercial households that have obtained business licenses may apply for trademark registration, regardless of whether the applicant is engaged in production and operation, or whether the registered trademark applied for is consistent with its business activities. Although the Detailed Rules for the Implementation of the Trademark Law stipulates that applicants for trademark registration must be legally established enterprises, institutions, social organizations, individual partnerships, individual industrial and commercial households and foreigners or foreign enterprises that meet the statutory conditions, the law does not stipulate who can apply for trademark registration for which goods or services. As a result, the goods or services applying for registered trademarks are inconsistent with the applicant's production and business scope, which leads to the proliferation of applicants' applications for registration, making most registered trademarks "idle trademarks" independent of goods. Secondly, the interests of trademark registration applicants have not been fully protected. In order to determine the ownership of the exclusive right to use a trademark, China adopted the principle of "application first". Article 18 of the Trademark Law stipulates that if two or more applicants apply for registration with the same or similar trademarks on the same or similar goods, the earlier trademark shall be preliminarily examined and announced. Because the date of application for trademark registration in China is the date when the Trademark Office receives the applicant's application for trademark registration and relevant materials. (Note: Article 12 of the Detailed Rules for the Implementation of the Trademark Law. Therefore, the application date recognized by the trademark law sometimes does not correctly show the application date of the trademark applicant. Take the trademark "Xia Lu" of Shanghai Xia Lu Commodity Factory as an example. The application date for trademark registration was1June, 98714th. However, due to the work delay of the administrative department for industry and commerce, the Trademark Office only received the application on1March, 98815th, and Jiangsu Wuxi Beauty Products Factory has been in/during this period. Shanghai Xia Lu Commodity Factory used the trademark "Xia Lu" for nearly five years, and was finally registered by others. (Note: See Guide to the Essentials and Handling of the Latest Intellectual Property Cases, edited by Yang Jinqi, p. 404, Law Press, 1996. ) The establishment and protection of domestic well-known trademarks are not used.
China is a member of the Paris Convention for the Protection of Industrial Property. Article 6, paragraph 2, of the Convention stipulates that each member state shall, under the conditions permitted by its own laws, protect a trademark recognized as well-known in its own country by the competent authorities of the country where the trademark is registered or used, regardless of whether the trademark is registered or not, that is, it is not registered. China has acceded to the Convention and is obliged to implement it. In judicial practice, generally in accordance with the provisions of Article 124 of the General Principles of Civil Law, when a well-known trademark of a member country of the Paris Convention is registered by others, or copied or imitated by others on the same or similar goods, the provisions of the Paris Convention on the protection of well-known trademarks are directly invoked. (Note: For intellectual property rights, please refer to Cao's Suggestions on Amending the Trademark Law. ) whether the trademark is a registered trademark or an unregistered trademark. This is the case. China's laws only protect registered trademarks for domestic trademarks, and protect both registered trademarks and unregistered trademarks (of course, well-known trademarks recognized by the state) for foreign trademarks. The "super-national treatment" of foreign trademarks is legally formed, which makes domestic unregistered trademarks unable to enjoy the rights conferred by the Paris Convention. The reason is that only registered trademarks can become well-known trademarks in China. (Note: See Chen Zhigang's On Well-known Trademarks, Journal of Lanzhou University, No.2, page 50, 1996. According to the principle of registration, unregistered trademark users have no exclusive right to use trademarks and are not protected by law. Anyone can register. How can such a trademark be famous? Therefore, the current system of exclusive right to use a trademark is not only not conducive to the creation and protection of domestic well-known trademarks, but also does not meet the requirements of the Paris Convention.