Protecting the exclusive right to use a trademark is the fundamental purpose of the trademark law and the foundation on which the trademark law depends. Most of the provisions of the trademark law are about how to obtain, maintain and exercise the exclusive right to use a trademark and how to protect it. In 195, the Provisional Regulations on Trademark Registration approved and promulgated by the State Council took the protection of the exclusive right to use trademarks as its sole purpose. Although the basic content of this regulation lies in trademark registration, there is hardly any substantive content in the protection of trademark exclusive rights. However, the provisions of the Trademark Law enacted in 1982 on the protection of the exclusive right to use a trademark are quite substantial, especially after two revisions in 1993 and 21, the level of protection of the exclusive right to use a trademark in China's current trademark law is no longer far away from western advanced countries.
the reason why the exclusive right to use a trademark needs to be protected by enacting special laws is because, as an important intellectual property, the exclusive right to use a trademark contains seemingly simple but complicated social relations. As the object of this exclusive right-trademark, it does not seem to have practical value for human survival and life needs: it can not be used to wear like clothes, shoes and hats, nor can it be used to satisfy hunger like food, nor can it be used to treat diseases like medicines. However, as one of the most recognizable business marks, trademarks can be used to guide consumption, help enterprises providing goods to establish important contacts with consumers buying goods in the market, and are an important bridge and link connecting enterprises and consumers. In a market economy society full of fierce competition, the same product is often produced and sold by many different enterprises at the same time, and the products of different manufacturers often have different qualities to meet the different interests and hobbies of different consumers for the same product. From the enterprise's point of view, it is the key to win the most consumers through trademarks. From the perspective of consumers, it is also the key to protect their rights and interests to be able to buy the goods they want by virtue of the recognized trademarks. To achieve this dual purpose, trademarks, as the basic symbol to distinguish the source of specific products, must be unique and significant, that is, they can only be owned by one enterprise, and trademarks used by different enterprises on the same goods or even different goods can be distinguished from each other, otherwise they will be confused, misleading and even deceptive among consumers, which will damage the interests of both manufacturers and consumers. Therefore, legislation should be adopted to ensure that the enterprise's possession, use, maintenance and protection of trademarks are orderly, so that it will neither harm the interests of the public nor harm the legitimate rights and interests of others. Once it is violated, it can be refused registration or revoked in accordance with the relevant procedures prescribed by law. The exclusive right to use a registered trademark obtained according to law should be protected according to law. Once it is infringed, it should be resolutely stopped and the infringer should be severely punished.
maintaining the reputation of trademarks and protecting the interests of producers and operators are the same issues as protecting the exclusive right to use trademarks. Among them, protecting the interests of "producers and operators" is a new content added in the revision of the Trademark Law, which makes the object protected by the Trademark Law more specific and clear. Logically speaking, protecting the exclusive right to use a trademark, maintaining the reputation of a trademark, and safeguarding the interests of producers and operators have a progressive relationship from relatively abstract to more specific. The reason to protect the exclusive right to use a trademark is that any infringement of the exclusive right to use a trademark may damage the commercial reputation of its users, reduce the market share it has obtained or may obtain, and thus lead to the loss of its economic interests. Therefore, protecting the exclusive right to use a trademark is an inevitable requirement to maintain the reputation of a trademark, and it is also an inherent need to protect the interests of the producers and operators who use the trademark. The revised expression will undoubtedly help people to understand the legislative purpose of trademark law more comprehensively and deeply.
second, strengthen trademark management to urge producers to ensure the quality of goods and services and protect consumers' interests
Strengthening trademark management to urge producers to ensure the quality of goods and services and protect consumers' rights and interests is also an important purpose of trademark law. Among them, the word "and service" is the new content added in this revision. As early as 1993, when the Trademark Law was revised, the relevant provisions were added in a relatively simple way. This time, the content of service was added in the legislative purpose, which showed the importance of service, and the text expression was more comprehensive, although the concept logic between "service" and "producer" did not match very well.
trademark management can be divided into broad sense and narrow sense. Trademark management in a broad sense is relative to registration, and matters other than registration can be included in the scope of trademark management, including all the contents of chapters VI and VII and some provisions of chapters IV and V of the Trademark Law. In a narrow sense, trademark management mainly refers to the management of trademark use stipulated in Chapter VI of the Trademark Law. The contents of the Implementation Regulations on trademark management are mainly concentrated in Chapter VI.
The issue of trademark management was clearly raised in the articles on legislative purposes, which can be traced back to the Regulations on Trademark Management approved by the 91st session of the 3rd the NPC Standing Committee in 1963. Article 1 of the Regulations clearly stipulates that the purpose of formulating the regulations is to "strengthen trademark management and urge enterprises to guarantee and improve the quality of products". At that time, trademarks were regarded as "symbols representing certain quality of commodities", and only enterprises whose products met certain quality standards were eligible to use trademarks, and the trademarks used by enterprises had to apply for registration with the Central Administration for Industry and Commerce. In this case, the trademark is actually a "qualified quality" sign, and the application for trademark registration must be reported to the Commodity Quality Specification Form. Trademark management is an important means for the government to manage product quality, and its function as a commercial logo to distinguish the source of goods is almost lost. Therefore, the regulations do not and cannot regard the ownership and use of registered trademarks by enterprises as a civil right that needs protection. According to the regulations, it is an important duty of the industrial and commercial administrative organs to supervise and manage the quality of products, and the quality management is realized through the management of trademarks. If an enterprise's products are shoddy or of poor quality, the industrial and commercial administrative authorities have to cancel its trademark registration as a punishment.
in p>1982, when the current trademark law was enacted, trademark management still occupied an important position in the legislative purpose. Although most products can be sold without using registered trademarks or even trademarks, some products still need to use registered trademarks, otherwise they are not allowed to be sold. It can be seen that registered trademarks still have the characteristics of "high quality" signs, and trademark management is still an important means to manage product quality. According to the provisions of the Trademark Law and its detailed rules for implementation, some commodities must use registered trademarks, and it is forbidden to change registered trademarks or related registered items on their own, and it is forbidden to transfer registered trademarks on their own. Commodities using registered trademarks must not be shoddy, shoddy, deceive consumers, and it is forbidden to impersonate registered trademarks, which are all regarded as important contents of trademark management. Offenders may be notified and fined, or their trademark registration may be revoked. When the Trademark Law was amended in 1993, it did not involve trademark management, and the amendment in 21 did not involve much trademark management. Only the words "supervising the quality of goods" in Article 6 of the original Trademark Law were deleted. Trademark management is still one of the basic contents of the Trademark Law, and it is still an important responsibility of the industrial and commercial administrative organs.
trademark management includes two aspects. One is to manage the registered trademarks; The second is to manage unregistered trademarks. Management of registered trademarks can be divided into two aspects. On the one hand, it is for the sake of the trademark owner to urge him to use the trademark correctly in order to better protect the registered trademark. Therefore, the Trademark Law requires the registrant not to change its registered trademark, change the relevant registered items or transfer the registered trademark without authorization. On the other hand, the management of registered trademarks is out of the need to safeguard consumers' rights and interests and social and economic order. Trademark law does not allow a trademark registrant to expand the scope of goods or services approved for use by its registered trademark without authorization, and the goods used are shoddy, shoddy, deceiving consumers, and granting licenses without control. Offenders will be punished in some form, or even their trademark registration will be revoked. In addition, the cancellation of a registered trademark due to improper registration, improper use or non-use for three consecutive years can also be regarded as the content of trademark management in a certain sense. When a registered trademark becomes a common name for goods or services due to improper use, continuing to protect it will harm the interests of most people in society, while a trademark that should not be registered will also harm the interests of the public or others if its registration is not revoked. As for the long-term non-use of trademarks after registration, it is not only a waste of trademark management resources, but also an obstacle for other people with sincere intention to choose trademarks. Trademark management practices around the world have proved that it is absolutely necessary to set up revocation procedures for these types of registered trademarks.
compared with the management of registered trademarks, the management of unregistered trademarks has a single purpose, mainly for the needs of safeguarding the interests of the public and the legitimate rights and interests of others, and rarely takes into account the interests of its users. In a narrow sense, the management of unregistered trademarks is mainly stipulated in Article 48 of the Trademark Law, including three basic aspects: prohibiting impersonation of registered trademarks, prohibiting the use of unregistered trademarks in violation of prohibition clauses, and prohibiting the use of goods with unregistered trademarks from being shoddy, shoddy and deceiving consumers; In a broad sense, the management of unregistered trademarks should also include the provisions of Chapter VII of the Trademark Law that the use of unregistered trademarks shall not infringe upon the exclusive right of others to register trademarks.
compared with the fundamental purpose of protecting the exclusive right to use a trademark, strengthening trademark management to urge producers to ensure the quality of goods and services and protect the interests of consumers is in a less important position in the legislative purpose of trademark law. Because product quality issues and consumer rights protection issues have special laws to adjust. Trademark law does not stipulate and should not directly stipulate the quality standards of products, nor can it specify in detail the principles and procedures to be followed in protecting consumers' rights and interests. The quality standards of products, whether enterprise standards, industry standards, departmental standards or national standards, are not within the scope of adjustment of the Trademark Law. In fact, it is difficult to directly supervise the quality of goods through trademark management. The revision of Article 6 of the original trademark law shows that the legislature intends to downplay the development direction of product quality management in the trademark law. The trademark law still regards "urging producers to ensure the quality of goods and services" as an important part of the legislative purpose of trademark law. On the one hand, people still hope to urge producers (operators) to ensure the quality of goods and services and protect the legitimate rights and interests of consumers through trademark management measures stipulated in the current trademark law, especially the provisions in Articles 45 and 48 on stopping "shoddy, shoddy and deceiving consumers"; On the other hand, by protecting the exclusive right to use trademarks, maintaining the reputation of trademarks and safeguarding the interests of producers and operators, it can really indirectly protect the interests of consumers objectively. There is no doubt that the protection of the exclusive right to use a trademark is at odds with trademark counterfeiting, infringement and other unfair competition behaviors of "hitchhiking", which are harmful to both the interests of producers (operators) who use trademarks and the rights and interests of consumers. If the measures stipulated by law are strong, law enforcement can be put in place, so that all kinds of counterfeiting, infringement and other unfair competition can be effectively curbed. While the interests of trademark owners are directly protected, the rights and interests of consumers can also be indirectly protected. In addition, the protection of the exclusive right to use a trademark can not only encourage the protected producers (operators) to ensure and improve the quality of their products or services, but also actively carry out fair competition, as long as the degree of protection is sufficient and powerful; It can also urge the competitors of the protected person, even some unfair competitors, to devote themselves to fair quality competition, as long as the crackdown on unfair competition is sufficient and effective.
III. Promoting the development of socialist market economy
Promoting the development of socialist market economy has a more or less, far or near origin relationship with all laws in China today, and it is also the same goal that every government department, enterprise, institution, social organization and individual citizen should strive for. When the Trademark Law was enacted in 1982, because the country was still in the period of planned economy, the same goal of legislation was to promote the development of socialist commodity economy, and the Trademark Law was no exception. When the Trademark Law was amended in 1993, the legislative purpose was not involved. This revision replaces planned "commodity economy" with "market economy", which is a qualitative leap and can be said to conform to the times, making the revised trademark law more contemporary in the expression of legislative purposes.
among many legal departments, trademark law is closely related to the development of market economy. The basic law of market economy is "fair competition, survival of the fittest", and the anti-unfair competition law is in the position of basic law in the legal system of market economy. In a narrow sense, China's Anti-Unfair Competition Law refers to the Law of the People's Republic of China on Anti-Unfair Competition adopted at the Third Session of the Eighth the NPC Standing Committee in 1993. Broadly speaking, any laws, regulations, rules and normative legal documents containing anti-unfair competition content belong to anti-unfair competition law; Anti-unfair competition law in a broad sense is a departmental legal system, not a specific law. Trademark Law is an important branch of intellectual property law system and an important part of anti-unfair competition law. In Germany, trademark law has long been regarded as an important branch of competition law. Because the exclusiveness of the trademark right means that its owner enjoys the exclusive right to use it and has the right to prohibit others from using the trademark without its permission. The exercise of trademark rights inevitably affects the competition order, and the purpose of competition law is to regulate the market competition order. In Canada, the law on trademark protection is called the Law on Trademarks and Unfair Competition, and the Trademark Law is just its abbreviation. In the chapter on prohibited signs, the law specifically provides anti-unfair competition provisions, for example, no one may make false or misleading statements that damage the credit of competitors, and may not use ways that lead to or easily lead to confusion to attract public attention. In fact, the prohibition of deceiving or misleading the public, harming competitors, counterfeiting, confusion and anti-dilution are important principles followed by trademark laws and anti-unfair competition laws in many countries.
the promotion of trademark law to the development of market economy is realized by protecting the exclusive right to use trademarks and maintaining the order of fair competition.
as mentioned earlier, the market economy is a competitive economy. Under the condition of market economy, the same commodity or service is often provided by many different enterprises, and the same commodity or service provided by different enterprises often has different quality. In order to facilitate consumers' choice, it is proved to be an effective method to attract consumers' attention by using certain marks. Therefore, as a mark to distinguish the source of goods or services, trademarks have an important function of guiding consumption. Since consumers choose goods or services through trademarks, in order to let consumers choose their own goods or services, operators are bound to devote themselves to improving the competitive indexes such as the quality, technical content and cultural taste of their goods or services, and try their best to win the trust and love of consumers.