1. the value orientation of the trademark law and its legislative purpose
1. the value orientation of the trademark law
to understand the legislative purpose of the trademark law, we must first make clear the value orientation of the trademark law. In the past trademark legislation and practice in China, the protection of trademark rights was considered from the perspective of "management". The Trademark Management Ordinance of 1963 is a very typical example. Although the "management concept" changed greatly in the formulation and revision of the trademark law in 1982, 1993 and 21, especially in the revision in 21, a very important feature was that it began to pay attention to the "private right" of trademark rights. [1]
This is an important progress in the value concept and legislative guiding ideology of China's trademark law. This is also to meet the needs of international conventions such as the Agreement on Trade-related Intellectual Property Rights (Trips Agreement) to which China is a party, because the Trips Agreement has clearly defined intellectual property rights as "private rights". However, it should also be noted that in the specific system design, the revision of the Trademark Law is not enough, and the "public right color" of strengthening administrative management is still obvious. [2] This revision of the Trademark Law should still appropriately highlight the private nature of trademark rights in terms of value orientation, and reflect it in the purpose clause of the Trademark Law.
2. legislative purpose of trademark law
the purpose of trademark law is embodied in the trademark law of a country. However, there are different characteristics in the legislative style. For example, in 1946, the U.S. Congress reported that the dual objectives of the Langham Act (American Trademark Law) were: (1) to protect the public so that they could confidently obtain the products they needed, that is, when buying goods marked with a specific trademark, they got exactly what they needed; (2) Protect the investment of all people. When the trademark owner has invested energy, time and money to provide goods to the public, his investment will not be stolen by piracy and deception. Based on these two purposes, the law reaffirms the prohibition of confusion involving the original source of goods. The report of the US Congress also points out that the legal protection of trademarks has two aspects, that is, to prevent others from copying trademarks with different functions and to safeguard the exclusive rights in the commercial value of trademarks created through advertisements. This is a definite rule to protect both the public and trademark owners. In Lanham Law, the purpose of trademark law is defined as protecting consumers' interests against confusion and monopoly and protecting producers' investment in trademarks. [3]
Theoretically, the purpose of trademark law should be embodied in the following three aspects: (1) Protecting the exclusive rights of trademark owners. Trademark is endowed with an exclusive right, which needs to ensure the interests of manufacturers by preventing consumers from confusing the source of goods, and at the same time, it is used as a free expression means of effective competition. The purpose of trademark law to protect the exclusive right to use a trademark is embodied in the principles and systems of trademark law to protect the exclusive right to use a trademark. (2) protect the interests of consumers. The principle of protecting consumers' interests in trademark legislation reflects the purpose of socialist production in China. (3) Protecting legal competition, promoting effective competition and maintaining market competition order. From the perspective of competition, the distinguishing function of trademarks provides a means for effective competition among manufacturers. The basic goal of trademark law is to facilitate the circulation of competitive goods and improve economic benefits by enhancing competition.
China's trademark law also clearly stipulates the legislative purpose of trademarks-"This law is formulated in order to strengthen trademark management, protect the exclusive right to use trademarks, urge producers and operators to ensure the quality of goods and services, safeguard the reputation of trademarks, protect the interests of consumers, producers and operators, and promote the development of socialist market economy". The revision of the legislative purpose itself reflects the content and purpose of the trademark law to meet the needs of the new situation. Compared with the previous analysis, this clause still does not highlight the core value orientation of trademark protection, but strengthens the management function of trademark law as a whole. A possible modification mode may be: "This Law is formulated in order to protect the exclusive right to use trademarks, strengthen trademark management, promote producers and operators to ensure the quality of goods and services, safeguard the interests of consumers and the fair competition order of the socialist market economy, and promote the development of the socialist market economy".
II. Perfection of substantive issues related to trademark registration
1. Registration of trademarks by natural persons
Article 4 of the Trademark Law stipulates the issue of natural registration of trademarks, which is an important breakthrough for China not to allow natural persons in China to register trademarks before, and also reflects the strengthening of the private right of trademark rights. However, in the practice of trademark registration, it is not uncommon for natural persons to apply for registration for commercial purposes other than production, manufacturing, processing, selection, distribution of goods or provision of services. If a large number of trademarks applied for registration by natural persons are approved for registration but not actually used, it will cause a waste of trademark resources. In fact, the State Administration for Industry and Commerce has realized this problem, and issued "Matters needing attention for natural persons to apply for trademark registration". When the Trademark Law is revised, the natural person can be more clearly restricted from applying for registered trademarks. If the provisions do not meet the requirements of Article 4 of the Trademark Law, the Trademark Office shall not accept the application. And when applying for trademark transfer, it should also refer to the registration conditions of natural persons.
2. Registration and use of collective trademarks, certification trademarks and geographical indications
The trademark law clearly stipulates the protection of collective trademarks, certification trademarks and geographical indications, which is of great significance for perfecting China's trademark protection system and broadening the scope of trademark protection. However, the Trademark Law lacks detailed provisions on the registration and use of collective trademarks, certification trademarks and geographical indications, especially in terms of use. The Trademark Law does not clearly define the legal relationship between registrants and users, resulting in confusion in the use of such marks in practice. It is suggested that on the basis of summing up practical experience, the relevant departmental rules and regulations such as collective trademarks and certification trademarks should be studied, and the relevant contents should be incorporated into the revised trademark law after revision.
3. Legal status of unregistered trademarks
The trademark laws of many countries, including China, do not exclude the use of unregistered trademarks. In fact, it is necessary to use unregistered trademarks in some cases, such as the trial products or seasonal commodities that are not finalized by enterprises. Trademark law implements the principle of voluntary registration, which makes a large number of unregistered trademarks inevitably exist in practice. Except that Article 31 relates to the unregistered trademarks that have been used and have certain influence, which gives the owner the right to prohibit others from registering first, Article 48 stipulates the management of unregistered trademarks, and Article 13 also stipulates the special protection of well-known trademarks that have not been registered in China, there is no clear stipulation on unregistered trademarks in other places, so that a large number of general unregistered trademarks that have not become well-known are not regulated in the Trademark Law, forming a blind spot for the adjustment of unregistered trademarks. It is suggested that at least some principled provisions should be made in the trademark law in view of the problems in the practice of using a large number of unregistered trademarks. For example, one model is to standardize unregistered trademarks, integrate the above three contents, focus on the issue of unregistered trademarks, and make principled provisions on how to define unregistered trademarks that have been used and have certain influence in Article 31, so as to distinguish them from ordinary unregistered trademarks and well-known unregistered trademarks.
4. International registration of trademarks
With China's entry into WTO, it is becoming more and more important for Chinese enterprises to implement transnational internationalization strategy. The realization of internationalization strategy's goals needs to be supported by strong international competitiveness. In the process of gaining international competitiveness, intellectual property rights play a particularly important role. In today's increasingly fierce international competition, it is of great significance to use trademarks as an intellectual property to explore the international market. [4] China has joined the madrid agreement concerning the international registration of marks in October 1989 and the madrid agreement concerning the international registration of marks Protocol in December 1995. Chinese enterprises can make full use of the provisions of the agreement and the Protocol to apply for international registration of trademarks. According to the provisions of the agreement and protocol, nationals of any contracting state can apply for registration to the International Bureau of the World Intellectual Property Organization through their own trademark authorities. The applicant may apply to the International Bureau through the national registration authority for a trademark that has been registered in his own country or a trademark that has been applied for registration in his own country.
the trademark law does not provide for the international registration of trademarks, which is not conducive to encouraging Chinese enterprises to "go global" and carry out international operation of trademarks. Therefore, it is suggested that the principled provisions on international registration of trademarks should be added in the revision.
iii. improvement of procedural issues related to trademark registration application and approval
the provisions of trademark law on procedural issues can be divided into before and after trademark registration application is approved. Before the registration is approved, the procedural issues mainly involve trademark objection, objection review and trademark registration review, while after the registration is approved, it involves the stability of trademark rights, including revocation and disputes. Judging from the implementation of the Trademark Law, there are many problems in the application of these procedures, among which the serious backlog of applications for registration directly affects the interests of registration applicants and the reputation of the Trademark Law in the public.
1. Trademark objection and objection review
Trademark objection is a system that has existed since the implementation of the Trademark Law. The advantage of this system is that it can ensure that the application for trademark registration that does not meet the requirements of the trademark law cannot be registered to a certain extent. However, the system also exposed some problems in practice. For example, for the purpose of malicious competition, some dissidents maliciously use the objection procedure to block the registration for many times. In addition, the establishment of the objection review procedure makes the objection procedure applicable for a long time, especially after the revision in 21, if you refuse to accept the ruling made by the Trademark Review and Adjudication Board, you can bring a lawsuit to the people's court. The revised draft of the State Administration for Industry and Commerce advocates simplifying the objection review procedure, and the objector can apply directly to the Trademark Review and Adjudication Board without going through the Trademark Office. The author thinks that the objection review procedure can be cancelled, and instead, it can directly apply to the Trademark Review and Adjudication Board for an objection ruling, and those who are dissatisfied with the ruling can sue in the people's court again. In order to prevent too many objections from entering the objection procedure and possible litigation procedure, it seems that the trademark objection system should be refined when revising, and the conditions for objection and the legal consequences that may be caused by malicious objection should be clearly stipulated.
3. Examination of trademark registration application
Examination of trademark registration application is an important guarantee to ensure that the approved registered trademark conforms to the provisions of the Trademark Law. In recent years, with the development of economy and the enhancement of people's awareness of trademark protection, the number of trademark registration applications in China has continued to rise. In the face of more and more backlog of applications, one proposition suggests canceling the substantive examination system. This view has also been reflected in the revised draft. The author does not advocate the abolition of the substantive review system. The reason is that the consequences of cancellation may be very serious. Originally, in the case of implementing the substantive system, many registered trademark problems still arise, such as conflicts with prior rights, improper registration, and conflicts with other people's trade names (trade names). Cancellation of substantive examination may result in a large number of trademark registration applications that do not meet the requirements of the Trademark Law being approved for registration, and more conflicts with the name (trade name) or violations of prior rights. Accordingly, it will increase the pressure on trademark litigation in people's courts, because it may lead to a large number of litigation cases. How to reform the censorship that needs to overcome the backlog of application cases and ensure the quality of trademark registration is indeed an important issue that needs further study.
4. Integration of trademark dispute, cancellation and termination provisions
The current trademark dispute system is only aimed at the same or similar trademarks previously registered on the same or similar goods. In addition, the Trademark Law also stipulates the revocation system of improperly registered trademarks. These two systems are aimed at establishing an "after-the-fact" disposal mechanism for trademarks that have been approved for registration and do not conform to the provisions of the Trademark Law. In addition, there are some cases of natural termination of trademark rights in trademark law, such as: abandonment of trademark rights, failure to renew the trademark rights after the expiration of the protection period or rejection of the application for renewal, etc. This is the cancellation system of trademark rights. The revocation and cancellation of trademark rights have different legal consequences. It is worth considering whether it is necessary to introduce the invalidation system of foreign trademark rights, incorporate the dispute, revocation and termination of trademark rights into this system, and establish a unified termination and invalidation system of trademark rights.
III. Several Issues Concerning the Exercise and Protection of Trademark Rights
1. Trademark rights * * * have
trademark rights * * * have been added in the revision in 21. This content is also considered to reflect the private right of trademark rights. However, this law lacks provisions on how to exercise the trademark right of * * *, how to coordinate the rights and obligations between * * * people and how to identify some * * * people when they have rights and obligations with a third party. The author advocates adding some contents to the problem of trademark right. For example: trademark * * * Some people need the consent of all * * * people to exercise the following rights: (1) transfer * * * with trademark rights; (2) giving up the trademark right; (3) Pledged with trademark rights; (4) License others to use the trademark of * * *. In addition, the exercise of * * * rights may involve the protection of bona fide third parties, and it may also be considered to regulate.
2. protection of well-known trademarks
protection of well-known trademarks is an important content of trademark law and the focus of trademark protection at present. Articles 13, 14 and 41 of the Trademark Law regulate the registration protection of unregistered well-known trademarks in foreign countries, the extended protection of well-known trademarks in China, the determination of well-known trademarks and the adjudication of disputes over registered trademarks. In trademark practice, there are the following problems in the protection of well-known trademarks: (1) In the recognition of well-known trademarks, there are two ways: administrative recognition and judicial case recognition. In order to make the number of local well-known trademarks "leap", some areas have used government administrative resources and funds to launch the offensive of well-known trademark recognition, and some places have implemented the policy of rewarding enterprises recognized as well-known trademarks with millions of yuan, which has led to some irregular behaviors in the recognition of well-known trademarks, or has evolved into a government behavior in disguise, deviating from the trademark law. In the judicial case determination, some trademark owners do not hesitate to create false defendants in order to identify well-known trademarks, or create such "infringement cases" in order to maliciously stop competitors, which seriously distorts the original intention of well-known trademark protection, causes serious injustice to competitors and the public, and also seriously desecrates the national judicial system. (2) Enterprises that have obtained well-known trademarks regard "China Well-known Trademark" as a kind of.