whether cybersquatting is legal or not depends on the actual situation, rather than directly judging whether it is illegal. Application first and use first are two procedural principles of trademark confirmation, and their substantive bases are registration principle and use principle respectively. The so-called registration principle is to determine the ownership of the trademark right according to the order of applying for trademark registration. Whoever applies first will be granted the exclusive right to use the trademark, regardless of whether the trademark has been used. Manifestations and legal analysis of trademark cybersquatting behavior is a non-legal term, which has no definite connotation and extension. People use "trademark cybersquatting behavior" with their own needs and great randomness, and its similar meanings include "malicious cybersquatting" and so on. Trademark preemption refers to the actor's pre-registration of a trademark that has been used by others and has not been registered on the same or similar goods; The act of pre-registering a registered trademark or a well-known trademark on the same kind of goods or similar goods or on non-similar goods or services; And the act of registering other prior rights already formed by others as trademarks. (I) Registration of unregistered trademarks and unregistered trademark rights The Trademark Law of our country stipulates that if a natural person, legal person or other organization needs to obtain the exclusive right to use a trademark for the goods it produces, manufactures, processes, selects or distributes, it shall apply to the Trademark Office for trademark registration. A trademark approved and registered by the Trademark Office is a registered trademark, and the trademark registrant enjoys the exclusive right. It can be seen that in China, the exclusive right to use a trademark must be approved and registered by the Trademark Office, and the law only protects the exclusive right to use a registered trademark. China adopts the principle of voluntary registration in the trademark registration system, with compulsory registration of trademarks as an exception. Business operators are completely independent in deciding whether to use trademarks or apply for trademark registration for the goods or services they provide, and no one has the right to interfere. Similarly, anyone has no moral or legal obligation to apply for trademark registration to protect his interests. Whether to apply for registration of a trademark is up to the trademark user. On April 29, 1985, the State Administration for Industry and Commerce and other four ministries and commissions pointed out in the Notice on Several Opinions on the Use of Unregistered Trademarks that the use of unregistered trademarks in accordance with the law does not violate the voluntary principle of trademark registration, and commodities using unregistered trademarks should be allowed to produce, sell, export and participate in the evaluation of high-quality products. China allows the use of unregistered trademarks, although the use of unregistered trademarks will bring certain benefits to users, but this use is a right in fact and natural law, and can not produce exclusive rights. Compared with registered trademark right, unregistered trademark right has the characteristics of naturalness, convenience, usability and variability. Naturalness means that the obligee can naturally acquire the ownership of a trademark by designing it himself or hiring others to design it, without having to go through any other formalities. Convenience means that the obligee can freely dispose of his trademark right, whether it is licensing, pledge, investment or transfer, and it is not necessary to go through the filing procedures with the relevant competent authorities. Variability means that the right holder can modify his trademark at any time without violating the law and infringing on the trademark rights of others. The trial reflects the situation that the obligee is not sure whether a newly designed trademark can be welcomed by consumers after it is put on the market, and holds the attitude of giving it a try. If the goods marked with the trademark sell well, they can increase their investment. On the contrary, the investment will be reduced, or even the trademark will be completely abandoned. However, unregistered trademarks have their fatal weakness, that is, uncertainty and fragility. The so-called uncertainty means that although the obligee actually occupies a trademark in a certain period of time, he may eventually lose the trademark because he fails to apply for registration in time. This kind of thing often happens in countries that implement the principle of registration. When two or more enterprises producing the same or similar goods have the same or similar trademarks, according to the principle of registration, the first applicant will be registered. For the latter, not only can the trademark not be registered, but also the continuous use is not allowed, otherwise it will constitute infringement. In countries where the principle of registration is combined with the principle of use, although the previously used trademark can continue to be used after being registered by others, the scope of use is not allowed to expand, and the status quo can only be maintained. The fragility of unregistered trademark right is that it is easy to be infringed and difficult to be protected. In fact, under normal circumstances, it is basically difficult for the trademark authorities to provide effective protection for unregistered trademark rights, and the protection that the judicial department or other relevant departments can provide for unregistered trademark owners is also very limited. China's Trademark Law stipulates that if two or more applicants for trademark registration apply for registration with the same or similar trademarks on the same commodity or similar commodities, the trademark that applied earlier shall be preliminarily examined and announced, and the application of others shall be rejected without announcement. If there is no objection or the objection is not established within the announcement period of 3 months, the registration shall be approved. China's trademark law does not give any exclusive rights to unregistered trademark users. In the case that a trademark is used without registration, the user has no right to prevent others from using the same or similar trademark in the same commodity, service or similar commodity or service or to apply for registration first. Only when the users and users of unregistered trademarks apply for registration on the same day, according to the current situation of trademark use and application for registration in China, the applicants who used earlier will be taken care of so that they can be registered. This scope is limited, it cannot restrict others from applying for registration, and it must not violate the principle of applying first. It is his right for an unregistered trademark user to choose not to apply for registration of the trademark he uses, but he has no right to prevent others from applying for trademark registration of the trademark he used first because he has no exclusive right, and he cannot prevent others from obtaining legal rights through acts because the exercise of his right of omission does not produce legal rights, otherwise, it will be obviously unfair's to others. Users of unregistered trademarks have invested a lot in advertising the unregistered trademarks they use without applying for trademark registration on the same or similar goods or services later than others. If others apply for trademark registration first, this can only show that: 1. They pay attention to one thing and lose sight of another because of their own decisions; 2. Weak awareness of trademark rights; 3. Sleep on power. Of course, this can't provide him with legal protection. In countries where the exclusive right to use a trademark is registered, as long as the business entity has a strong sense of trademark rights and applies for trademark registration before or at the same time of using the trademark, there will be no preemptive registration of the trademark. In the countries where the exclusive right to use a trademark is obtained, the preemptive registration of a trademark can only occur if it is used first and then applied for registration. The view that all the acts of preempting the registration of trademarks are illegal is essentially to advocate the use of the right to exclusive use of trademarks, thus fundamentally denying the system of exclusive right to use trademarks by registration, which is completely contrary to China's trademark law. If it is a violation of the principle of good faith to register a trademark first, register a trademark that others have known to the public by copying, forging or translating; Or infringe upon the prior legal rights of others, such as copyright, patent right, trade name right, etc.; Or by other improper means, a trademark that should not be registered is allowed to be registered, and its behavior is illegal. According to Article 31 of China's current Trademark Law, applying 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. Therefore, it is conditionally confirmed that the act of preempting the registration of trademarks used by others first is an act prohibited by law. While adhering to the principles of registration and application first, the absolute principle of application first has been reasonably adjusted. It is emphasized that the application must be based on the principle of good faith first, and it is not allowed to steal the trademarks that others have used and have established reputation as their own trademarks to apply for registration, which makes up for the defects of the absolute registration principle and prevents the occurrence of unfair situations in fact. (2) registered trademarks and registered trademark rights. If a trademark has been registered in a specific country or region, under normal circumstances, it is impossible for others to be registered within the original scope within the validity period of registration. Article 6 of the Paris Convention for the Protection of Industrial Property stipulates: "The conditions for the application and registration of trademarks shall be stipulated by their own laws in each country of the Union." "However, an application for trademark registration filed by a national of the Union country in the Union country shall not be rejected on the grounds that it has not been applied for, registered or renewed in the country of origin, nor shall the registration be invalidated." "Trademarks officially registered in one country of the Union and those registered in other countries of the Union, including those registered in the country of origin, shall be regarded as independent of each other." The madrid agreement concerning the international registration of marks stipulates that each contracting state may notify the Director-General of the World Intellectual Property Organization in writing at any time that the protection obtained through international registration can only be extended to that country when the trademark owner specifically applies. "After the International Bureau has notified the national competent authority that registered a trademark or filed an application for extended protection according to Article 3 ter, the relevant competent authority has the right to declare that the trademark cannot be protected in its territory in a country permitted by law." Registered trademark right is a relatively mature form of trademark right. It is a right determined by national laws, and it is the main object that is clearly protected by national laws. Registered trademark right means that the obligee not only owns a trademark in fact, but also has been legally recognized by the state and society. Compared with unregistered trademark rights, registered trademark rights are easy to be protected by national laws and even international laws, and have the characteristics of consciousness, stability and exclusivity. Generally speaking, the owners of registered trademarks know how to protect their rights better than the owners of unregistered trademarks, and they don't modify and replace their trademarks as frequently as the owners of unregistered trademarks. Although the registered trademark has obtained the independent exclusive right, the registered trademark right is also restricted by the region and timeliness, so the right of the obligee is obtained from the authorization or confirmation of the government. Independence determines that the standards of trademark registration examination and the granting and protection of rights are independent in all countries, and whether or not to join a convention to protect the exclusive right to use trademarks does not have a substantial impact on this. Regionality determines that a trademark is protected in one or several specific countries or regions, but it cannot be protected in countries or regions other than the registered countries or regions. Non-registered countries or regions have no obligation and will not protect the exclusive right of trademarks that are not registered in their fields, which may make Party A register trademark A in B goods or services in country C. If Party A fails to apply for the same registration in country D, Party B may register trademark A or a trademark similar to trademark A in B goods or services. Although this kind of preemptive trademark registration seems to be morally debatable, there is nothing wrong with the registration in law. The exclusive right to use a trademark obtained by the applicant for registration is not illegal and should be protected by the laws of that country in accordance with the law. In the past, because the trademark awareness of Chinese business operators was generally weak, the trademarks owned by them in China and having a certain or good reputation in some countries and regions were pre-registered by others in that country or region, resulting in that Chinese business operators could not use the original trademark registered in China in that country or region, and eventually withdrew from the market in that country or region, or they continued to use the trademark and occupied the market, but paid a high price to get the other party to transfer the trademark ownership, and even had to start a new "stove". The dilemma of losing money in economic interests, but being powerless in law and unable to turn to the law is proof of the above viewpoint. Of course, with the development of China's market economy, it is not uncommon for some domestic enterprises and individuals to register foreign well-known trademarks first in China in order to seek economic benefits. In fact, the Trademark Law, while establishing the priority of application and classified registration, provides the possibility for this kind of cybersquatting for profit. This is also the inevitable result of legislators' choice between fairness and efficiency. It should be said that the principle of classified application takes into account the finiteness of trademark resources and the divisibility of the market, so there is no reason for trademark owners to monopolize this trademark resource in all market fields, which is a restriction on trademark exclusive rights. Because, after all, the purpose of trademarks is to distinguish the sources of goods, it is possible to use the same trademark for different goods if a consumer will never think that Panda TV and Panda toffee are both produced by one manufacturer. But at the same time, a trademark is a symbol of quality and credibility, which makes a trademark gain its own value independent of goods, which is indeed a legitimate interest. But only when the value of this intangible asset reaches a certain level, such as the value of a well-known trademark, can it rise to a legitimate right recognized by law and be protected by law. In particular, intangible assets such as trademarks are a new type of property rights, and the existence of their rights depends entirely on the legal confirmation, that is, trademark rights are the product of national system supply. Therefore, the requirements of trademark law on legal essential behavior and procedural justice should be stricter than those of other property laws. Therefore, it should be more cautious to identify the trademark registration behavior that meets the procedural requirements as improper. Trademarks that can be protected across categories should be original. For example, many well-known trademarks, such as Coca-Cola, have gained uniqueness through their use and should be protected across categories. However, some trademarks that are not based on originality are not well-known enough to be given cross-class protection. Although the Trademark Law cites the principle of good faith in the General Principles of Civil Law, it does not mention cross-class registered trademarks. Registering a trademark in a field that has not been used by others, and after examination and authorization, can actually be considered as an ordinary market economy behavior. (3) Preemptive registration of well-known trademarks and well-known trademark rights is more complicated than pre-registered unregistered trademarks and registered non-well-known trademarks. Article 6 bis of the Paris Convention stipulates: "If permitted by domestic laws, all countries of the Union shall, according to their functions and powers, or at the request of the parties concerned, refuse or cancel the registration of trademarks that are considered by the competent authorities of the country where the trademarks are registered or used to be owned by the people entitled to enjoy the benefits of this Convention, which are well-known in that country, and are used for copying, imitation or translation of the same or similar trademarks, which is likely to cause confusion, and prohibit the use." "It should also be applied when the main part of the trademark constitutes a copy or imitation of the above-mentioned well-known trademark, which is easy to be confused." It can be seen that according to the Paris Convention, the protection scope of well-known trademarks is limited to the same or similar goods. "The protection of well-known trademarks is only applicable to other trademarks that have been registered or used and used on the same or similar goods. Whether these conditions are met or not shall be decided by the administrative organ or judicial organ of the country that accepts the protection request. " This provision only applies to well-known trademarks, not to service marks, but member States can apply the rules of well-known trademarks to service marks under similar circumstances. When a well-known trademark is pre-registered by others, according to the provisions of Article 6 bis of the Paris Convention, the owner of the well-known trademark may make a request to cancel the trademark within at least five years from the date of registration, and the countries of the Convention Union may specify a period during which a request to prohibit the use must be made. No time limit shall be set for the request for cancellation of registration or prohibition of use of a trademark obtained in bad faith. "The person who applies for registration or uses a trademark that conflicts with a well-known trademark knows that it is a well-known trademark, and may be interested in the possibility between the well-known trademark and the trademark he registered or used.