[ Abstract] The form of a trademark is a symbol, but only the symbol that refers to the market reputation is a trademark. The purpose of trademark law is to protect market reputation, not to protect empty symbols. There has been a serious phenomenon of symbolic enclosure in China. So-called? Symbolic enclosure? , that is, in the name of trademark rights, the practice of symbol monopoly. There are two main manifestations: 1. Symbolic enclosure in registration; 2. Symbolic enclosure in the exercise of rights. The four major defects of China's trademark remedy system are the institutional roots of conniving at symbol enclosure: 1. Excessive superstition on the effectiveness of trademark registration; 2. Excessive disregard for the effectiveness of trademark use; 3. Misestimation of symbolic value; 4. Right? Trademark use? And? Symbol use? Confusion. Only by reshaping the relief system of trademark rights, can the symbol enclosure be truly curbed, so that the symbol enclosure is unprofitable.

[ Keywords] relief of trademark symbol enclosure

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I. Trademarks and symbols

According to the theory of intellectual property law, intellectual property is the sum of intellectual property rights and commercial marking rights. This definition with enumerative traces leaves a logical question: why should these two rights be combined in one place and named as Yue? Intellectual property? And? There are essential differences between commercial marks and intellectual achievements. The former is protected by law without any intellectual requirements (such as originality or creativity), and its value does not come from its own intelligence. In other words, why is a non-intellectual achievement and intellectual achievement assembled in the same jurisdiction? The answer is: trademarks and forms of intellectual achievements are symbols. For the property system, the most valuable factor is the form of property. Similar property forms lead to similar behaviors of using property, and similar behaviors can be applied to similar norms [1]. Because intellectual achievements are similar to trademarks, the behaviors that dominate intellectual achievements and trademarks can be applied to similar norms, which are assembled into a unified intellectual property law.

The intellectual achievements of human beings are represented by symbols in form, and symbols are artificially created signals with referential functions. The so-called human creation is the act of constructing a symbolic world outside the natural world. As Cahill said:? In language, religion, art and science, all man can do is build his own universe? A universe of symbols that enables human experience to be understood and explained, connected and organized, integrated and generalized by him. ? Human knowledge is symbolic knowledge by its nature. ? [2] Obviously, a trademark is both a mark and a symbol. The symbolic form of * * * is the logical basis that trademarks and intellectual achievements belong to the same intellectual property object. The constituent elements of a trademark, whether it is words, colors, lines, or sounds and works, are manifested in the form of? The appearance of symbols? .

However, trademarks and intellectual achievements are seemingly different, and they each play different functions of symbols. Symbols have two basic functions. One is referential function. In this sense, symbols are equal to symbols, which exist to represent another thing. This is the initial function of symbols, such as? Xiaoqiao? Refers to a transportation facility. Second, the creative function, symbols can be combined to build new forms, such as? Pink memories? This expression is not a reference to any factual state. Trademark is not a general symbol, but a symbol that always plays a referential role. Its value always comes from the signified? The origin of goods or services. Therefore, the symbolic form of a trademark itself has no independent value. Intellectual achievement is a symbolic form with independent value, which no longer serves any signified, just like Susan? According to Langer, what is the artistic symbol? A kind of special symbol, because it has some functions of symbol, but it doesn't have all the functions of symbol, especially it can't replace another thing as a pure symbol, and it can also be associated with other things that exist outside itself? [3]. The symbols of intellectual achievements have gained independence, while the symbols of trademarks can never be independent. Once they are independent of business reputation, they are worthless.

to sum up, what are the trademarks? Shape? As a symbol, a trademark? God? It is the business reputation hidden behind the symbol. If a symbol does not exist as a representative of the origin of goods or services, it is not a trademark.

II. Symbolic enclosure phenomenon

The so-called symbolic enclosure phenomenon is an act of symbol monopoly in the name of trademark rights. This is a growing phenomenon in China in recent years. There are two main manifestations of the phenomenon of symbol enclosure: one is to register a symbol as? Trademark? , but without any real intention to use it, and then claim it to others by virtue of symbolic monopoly? Right? , this behavior can be called? Symbolic enclosure in registration? . For example, what is booming everywhere? Trademark supermarket? Most of the trademarks to be sold are empty symbols specially registered for sale, and have never been truly combined with goods or services. Second, the trademark owner will expand the scope of trademark rights to? Symbol right? As long as others use the same symbol as their own trademark, they advocate others regardless of whether the use is in the sense of trademark? Infringement? . This type can be called? Symbolic enclosure in the exercise of rights? . For example, Xoceco Electronics Company is registered on the TV? chdtv? Trademark? hdtv? Yes? High definition TV? English abbreviation for "highdefinitiontelevision", which Changhong Electric Company marked on the box of TV set? hdtvready? , sued by Xoceco for infringement. Obviously, Changhong Company uses? hdtv? Symbol, is to take its original meaning? HDTV, at this time? hdtv? The symbol is not the body double of Xoceco's reputation, so it is not a trademark. Xoceco? hdtv? Symbols and their own trademarks? chdtv? Claiming the so-called right on the grounds of approximate appearance is actually expanding the trademark right to right? hdtv? Exclusive use of symbols.

At present, more and more symbol enclosure behaviors combine the characteristics of the above two types, that is, choosing a symbol commonly used in commercial activities to register as a trademark, and the purpose of registration is not to use it, but to use it. Trademark right? The name prevents others from using the symbol normally. This kind of behavior has the characteristics of the above two types: 1. The purpose of registration is not to use, so the symbol has never obtained the essence of the trademark; 2. Obstructing others from using simple symbols, and the behavior of others does not constitute the use in the sense of trademarks. Trademark right? People also argue unreasonably? Right? . Therefore, there are both registered enclosures and enclosures in the exercise of rights.

No matter what kind of symbolic enclosure behavior, it distorts the function of the trademark system. The society pays huge legislative, judicial and law enforcement costs, not to protect pure symbols, but to protect business reputation. The rise of symbol enclosure induces some enterprises not to devote themselves to the establishment of market reputation, but to be opportunistic in symbol selection. On the one hand, it is the small profits of the enclosure (the only cost is the trademark registration fee), on the other hand, the innocent users are to blame. Like during the British enclosure movement? Sheep eat people? Phenomenon, under the symbol enclosure? Symbol eating enterprise? The consequences. Pursuing interests is human nature, and seeking interests by means of symbolic enclosure becomes? What's the status quo of China's monster? , there must be its unique institutional soil. Everyone in the legal profession has the obligation to improve the system. It is not enough to satirize the weakness of human nature, but also to improve the system? Mobility? .

to be sure, legislative defects and cognitive obstacles are the two sources of symbolic enclosure. The so-called legislative defect means that our country implements too loose registration principle, and the registrant can apply for registration without actually using the trademark or proving that he has the intention to use it. Therefore, symbol enclosure is very easy and the cost is low. At the same time, the Trademark Law of the People's Republic of China (hereinafter referred to as "Trademark Law") lacks flexible prohibition clauses for cybersquatting that violates the principle of good faith, and only stipulates? The application for trademark registration shall not damage the existing prior rights of others, nor shall it preempt the registration of trademarks that others have used and have certain influence by unfair means? . At present, some professional symbol-enclosure owners specialize in grabbing small and well-known unregistered trademarks in small towns, making it difficult for victims to prove them? Have a certain impact? . Some registration behaviors obviously violate the principle of good faith (for example, the registrant has a special connection with the actual user, and the registrant knows that others have used it first), but they may not meet the requirements? Have a certain impact? Conditions. In addition, the Trademark Law does not stipulate the prior right of use, which makes the contest between the symbol enclosure and the honest user often end in the victory of the enclosure. Therefore, what are the legislative defects? Symbolic enclosure in registration? The important institutional roots of.

what is the cognitive impairment? Symbolic enclosure in the exercise of rights? An important source of. As mentioned above, the form of a trademark is a symbol, and the relationship between a trademark and a pure symbol can only be grasped with the help of certain abstract thinking ability. People tend to confuse symbols with trademarks in their senses. When a trademark owner sees that a symbol is similar to his own trademark, he mistakenly thinks that others have used his own trademark. What is the difference? Use in the sense of trademark? For non-professionals, it is difficult. Although there is no lack of intentional expansion of rights, cognitive impairment is the cause? Symbolic enclosure in the exercise of rights? An important reason.

However, legislation and cognition are not the focus of this article. The revision of legislation is not a day's work, and the progress of cognition is not an overnight event. The idea of this paper is: how to curb the phenomenon of symbolic enclosure by improving the relief system of trademark rights. Without relief, there is no right. If we don't put? Trademark protection? Wrong? Symbol protection , so that the symbol of enclosure people realize that the land they enclose is unprofitable, and will reduce the enthusiasm of enclosure. Therefore, by improving the relief system of trademark rights, on the one hand, it can make up for the lack of legislation, on the other hand, it can guide trademark owners to correctly understand their own rights, which is the closest way to control symbol enclosure.

third, the misunderstanding of the trademark right relief system: encouraging symbol enclosure

(1) Excessive superstition about the effectiveness of trademark registration

Trademark right is a civil right, and trademark registration is a way of publicity for the acquisition of rights, and it has high credibility. Therefore, for a registered trademark, it should first be presumed that its rights are effective. However, this does not mean that the effectiveness of registered trademark rights is unquestionable, and all presumed rights can be overturned. If there is obvious evidence that the trademark registration is done in bad faith, it can overturn the credibility of the trademark right. Japanese scholars believe that if a trademark is registered maliciously, There is no substantive reason to believe that the trademark should be protected by law just because it has been registered, because this exercise of rights is obviously an abuse of rights? [4]. Moreover, the review of trademark registration mainly focuses on whether the symbol composition of the trademark is legal, and a large number of illegal reasons cannot be tested at the review stage. Therefore, the credibility of trademark registration is limited, and the main probative force is limited to? Is the symbol of the trademark legal? . As for whether the registration of a trademark infringes on prior rights or violates the principle of good faith, it is difficult to find it in the examination stage, so the registration itself cannot be guaranteed. In short, trademark registration is not an absolute proof of legitimacy. However, China's judicial and law enforcement agencies often misunderstand the registered trademark right as? Rights granted by administrative organs? , that its effectiveness is beyond doubt, shall be? Protection? . A survey shows that an enterprise specializes in registering trademarks similar to unregistered trademarks used by others, and the enterprise claims: Once we get the trademark registration certificate, we will report the other party's infringement to the industrial and commercial department according to the provisions of Article 52 of the Trademark Law, which is basically a case against one. ? [5] The superstition of the right relief department on the effectiveness of registration, coupled with relaxed registration conditions, will undoubtedly attract more people to sign the enclosure by way of registration, and even encourage more subtle malicious registration behavior. The original intention of the registration system is to strengthen the stability of rights and reduce the conflicts of rights, but due to the misunderstanding of the right relief organs, it is registered as a malicious enclosure? Money laundering procedures? .

Unfortunately, the Supreme People's Court put forward such a principle in a reply. The people's court shall not accept the dispute over the conflict of rights of the exclusive right to use a registered trademark involving the dispute over the authorization of a registered trademark, and inform the plaintiff to apply to the relevant administrative authorities for handling. ? If two registered trademarks are only objectively likely to cause confusion, and both registrants are registered in good faith, and neither party is at fault, it is not appropriate for the court to determine infringement, and it is very reasonable for the registration authority to cancel the registration of one party for the purpose of protecting consumers. However, if one party's registrant has obvious malice, its registration behavior itself constitutes infringement. Why doesn't the court grant relief? The principle established in this letter has delayed the procedure for legal obligees to obtain relief, and made it difficult for them to obtain relief. Register? Being an umbrella for some malicious parties will undoubtedly attract more registered enclosure behaviors.

(2) Excessive disregard for the effectiveness of trademark use

What gives a symbol the essence of a trademark is actual use. In the continuous commercial use, consumers gradually associate a symbol with the source of a specific commodity or service, which makes the symbol really grow into a trademark. However, judicial organs often overlightly use and re-register in relief procedures.

yes? Shanxi fangshan county Old Tradition Company v. Shanxi Xinghua Village Fenjiu Company? In case (1), the plaintiff registered on the liquor? Family? Trademark, but never actually used. Before its registration, the defendant had produced the Northern Brand? Family wine? , and the original defendant had negotiated joint venture and cooperation. The trademark applied for registration by the plaintiff is basically the same as the trademark actually used by the defendant in terms of symbol composition, and the plaintiff advocates the defendant to sell it? Family wine? The behavior of the infringement of their trademark rights. From the communication history of the original defendant and the consistency between the plaintiff's registered trademark and the defendant's use of the trademark, it is not difficult to see that the plaintiff's registration was obviously malicious. The plaintiff only made a symbolic enclosure, and the defendant used the trademark honestly. Is it the defendant's production and sales? Family? It is not difficult to make a trade-off between the interests of the two, combined with the legislative purpose of trademark law to protect market reputation. However, the first-instance judgment impressively wrote:? The use of a trademark does not necessarily result in the exclusive right to use a trademark, and a trademark can only be protected by registration. ? It is conceivable that this sentence will play an inductive role in symbolic enclosure.

(3) Misestimation of the value of symbols

Article 56 of the Trademark Law stipulates: The amount of compensation for infringement of the exclusive right to use a trademark refers to the benefits gained by the infringer during the period of infringement, or the losses suffered by the infringer during the period of infringement, including the reasonable expenses paid by the infringer to stop the infringement. ? In judicial practice, it is often difficult for trademark owners to directly prove their losses, so it is a common method to calculate compensation according to the infringer's benefits. However, what is presupposed by this clause? Trademark? , is a trademark in the real sense, and it is a trademark that embodies the market reputation. Only in this way can it be presumed that the infringer borrowed the reputation of the trademark owner and that the infringer's income was lost by the obligee. If the registrant's trademark has never been actually used, it is only an empty symbol, so there is no way to infer that the infringer's income is lost by the obligee. In the judicial practice of our country, the value of symbol and trademark is often not distinguished, and the compensation is based on the benefits of the infringer. Since symbols can get the same protection as trademarks, it is not surprising that people are keen on enclosing symbols by way of registration. Obviously, this relief principle? Will encourage people to register and hoard a large number of trademarks, and wait for others to infringe on their trademark rights and reap profits, which is obviously quite different from the purport of trademark law to protect trademark rights? [6]