Trademark Registration
In practice, the Trademark Law is specifically used to protect registered trademarks. Registered trademarks refer to all graphics, trademarks, and trademarks that have been registered and filed as trademarks of the brand. Text, sound, etc. So what are the basic principles stipulated in my country's trademark law? After reading the following content compiled by the editor of the Legal Affairs Network, it will definitely be helpful to you.
1. Registration Principles
Registration is a process of confirming the ownership of exclusive rights to a trademark. There are two basic principles adopted by the trademark laws of various countries in the world to confirm the exclusive right of trademarks, one is the registration principle, and the other is the use principle. The so-called registration principle means that the exclusive right to trademark is obtained through registration. Regardless of whether the trademark is used or not, as long as it complies with the provisions of the Trademark Law and is approved and registered by the trademark authority, the applicant will obtain the exclusive right to the trademark and be protected by law. The principle of use means that trademarks can generate rights through use. According to this principle, the first user can obtain the exclusive right to use a trademark. Article 3 of my country’s Trademark Law stipulates: “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 my country’s Trademark Law adopts the registration principle.
2. First to apply principle
The first to apply principle is one of the important procedural principles derived from the registration principle. Since the exclusive right of a trademark is generated based on registration, and there is not always one person applying for registration of the same or similar trademark on the same or similar goods, then the time of submission of the application will determine who owns the exclusive right to the trademark. Whoever owns it is an effective method. Therefore, Article 18 of the Trademark Law stipulates: “If two or more applicants apply for registration of the same or similar trademarks on the same goods or similar goods, the applicant who applied first shall be preliminarily reviewed and announced. trademark". This is the first-to-apply principle. According to this principle, even if a trademark has been used for many years, if you do not apply for registration in time, you will lose the opportunity to register because someone else applied first, and you will not get the exclusive right to the trademark. Of course, there are times when the first-to-file principle does not work. When two or more trademarks apply for registration on the same day, other methods must be used to determine the ownership of the exclusive rights. Therefore, Article 18 also stipulates that “if applications are made on the same day, the trademark that has been used first will be initially reviewed and announced, and applications from others will be rejected and will not be announced.” This shows that on the premise that we adopt the first-to-file principle, Also use first as an appropriate supplement.
3. The principle of good faith
The principle of good faith is a basic principle in the field of civil law. Its legal expression is stipulated in Article 4 of the "General Principles of Civil Law": "Civil Activities should abide by the principle of good faith. ”
The principle of good faith requires civil subjects to maintain a balance between the interests of the parties in civil activities, as well as a balance between the interests of the parties and the interests of society. In the interest relationship between parties, the principle of good faith requires respecting the interests of others and treating other people's affairs as one's own, so as to ensure that all parties involved in the legal relationship can get the benefits they deserve and not benefit themselves at the expense of others. When special circumstances occur that cause the interest relationship between the parties to be out of balance, adjustments should be made to restore the balance of interests, thereby maintaining a certain social and economic order. In the interest relationship between the parties and society, the principle of good faith requires that the parties shall not harm the interests of third parties and society through their own civil activities, and must comply with their social and economic purposes within the legal scope of rights. way to exercise your rights.
Although the current Trademark Law does not explicitly use the concept of "good faith", its many provisions on the establishment, exercise and protection of trademark rights reflect the basic spirit of the principle of good faith.
For example, Articles 6, 31 and 34 of the Trademark Law stipulate that "the behavior of deceiving consumers shall be prevented"; Article 8(8) shall not use "exaggerated publicity with deceptive intent". Provisions on the behavior of registering "sexual" words or graphics as trademarks; Article 27 on the behavior of "obtaining registration by deception or other unfair means"; Articles 38, 39 and 40 on the behavior of "obtaining registration by deception or other unfair means"; The provisions on behaviors that should be punished for "infringement of the exclusive right to use registered trademarks" all reflect the spirit of the principle of good faith. Article 25 of the "Details for the Implementation of the Trademark Law" clearly states that "violating the principle of good faith and registering others' trademarks that are already well-known to the public by copying, imitating, translating, etc." The behavior is interpreted as the behavior of obtaining registration by deception or other unfair means as specified in Article 27, Paragraph 1 of the Trademark Law. It can be seen that the principle of good faith, as a basic principle in the entire field of civil law, plays an important role in the Trademark Law, although we have not paid due attention to it as a basic principle of the Trademark Law in theory in the past. , but in practical activities such as the establishment, management and protection of trademark rights, we actually follow it as a basic principle.
4. Principle of voluntary registration
The so-called "principle of voluntary registration" means that whether or not to register a trademark used by an enterprise is entirely
determined independently by the enterprise. Article 4 of the Trademark Law stipulates that enterprises, public institutions and individual industrial and commercial entities that need to obtain the exclusive right to use a trademark for the goods they produce, manufacture, process, select or distribute, or for the services they provide, must submit a trademark application to the Trademark Law. Apply for product trademark or service trademark registration with the bureau. If an enterprise does not need or does not plan to obtain the exclusive right to use a trademark for the time being, it does not need to register. This registered trademark is allowed to be used, but the user does not have exclusive rights and cannot prohibit others from using it.
Corresponding to the principle of voluntary registration is the principle of compulsory registration or the principle of comprehensive registration. From 1957 to February 1983, my country implemented the principle of comprehensive registration, requiring enterprises to use trademarks for their goods, and all trademarks used must be registered. This principle mainly focuses on the word "management" and is not conducive to revitalizing the economy. At present, except for a few countries that still implement compulsory registration, most countries in the world implement the principle of voluntary registration.
Strictly speaking, our country does not implement the principle of voluntary registration in a pure sense, but still implements the principle of compulsory registration of trademarks for a very small number of goods under the premise of the principle of voluntary registration. Article 5 of the "Trademark Law" stipulates: "Products that must use a registered trademark according to the state must apply for trademark registration. If the registration is not approved, they may not be sold in the market." Article 7 of the "Trademark Law Implementing Rules" further stipulates: "The State It is stipulated in my country’s Trademark Law that pharmaceuticals and tobacco products for human use announced by the State Administration for Industry and Commerce must use registered trademarks. 》A feature of.
5. Principles of centralized registration and hierarchical management
Centralized registration and hierarchical management are one of the outstanding features of my country’s trademark legal system. According to the characteristics of the market economy and trademarks themselves, trademark registration should break the division between departments and regions, and the Trademark Office should be responsible for the review, approval and registration of trademarks. To this end, Article 2 of the Trademark Law stipulates: “The Trademark Office of the State Administration for Industry and Commerce shall be responsible for the registration and management of trademarks nationwide.” This determines that the Trademark Office of the State Administration for Industry and Commerce shall be responsible for handling the nationwide trademark registration work. , no other institution has the right to handle trademark registration, clarifying the principle of centralized registration. Hierarchical management means that the industrial and commercial administration agencies at all levels carry out trademark management work in their respective regions in accordance with legal provisions. The implementation of hierarchical management is conducive to closely integrating trademark management work with local actual conditions, making trademark administrative work regular and institutionalized.
6. The principle of parallel administrative protection and judicial protection
This is another outstanding feature of my country’s trademark legal system. The Trademark Law stipulates that for trademark infringement, the infringed party can choose to have it handled by the industrial and commercial administrative authorities or file a lawsuit in the People's Court.
If the infringed party files a complaint to the industrial and commercial administration authorities, the industrial and commercial administrative authorities may, based on the valid evidence provided by the infringed party or the evidence obtained during its own investigation, order the infringer to immediately stop its infringing behavior, compensate the infringed party for its losses, and also A fine can be imposed at the same time. If the parties concerned are dissatisfied with the penalty decision made by the industrial and commercial administrative authorities, they may file a lawsuit in the People's Court. The principle of parallel protection provides convenience for parties to resolve trademark disputes and is conducive to the protection of exclusive rights to trademarks.
The above six principles run through various provisions of the Trademark Law and form the basis for the protection of trademark rights in my country.