On The Acquisition And Elimination Of Trademark Right

Trademark right acquisition and elimination is an important part of the trademarklaw system. For the basic attitude to the acquisition of trademark right and eliminatesystem will affect all aspects of a country’s specific provisions of the trademark law.For example, if that trademark right is considered to be produced through the use andthe registration is only a way to confirm the nature right produced through the use of,the scope of trademark protection trademark will be associated with scope of the use.Accordingly, different reasons for trademark right elimination can lead to differentprovisions on trademark objection, revocation and abandon. Therefore, the analysis ofacquisition and elimination of trademark right is the basic and fundamental question isresearching trademark law. In addition, acquisition and elimination of rights are twodifferent aspects of the same problem. Only to the link the analysis and find out theircommon foundation can we integrate the relevant system to avoid the existingsituation of lacking a thread put relevant trademark provisions together with the guideof the same theory. Divided into four chapters, this paper discusses acquisition andelimination of trademark right in order to put forward some concrete opinions andsuggestions for the third amendment of China’s trademark law with the theory of thefunction and the structure of trademark as the thread that put the whole papertogether. The Chapter I is the analysis of related issues for the theory perspective. Bycomprehensively analyzing the history of the development of trademark law, thestructure and function of trademark, the legitimacy and rationality of trademarkprotection and registration system of trademark right, the conclusions that the corevalue of the protection of trademark right is the goodwill embodied in trademark andinformation function of trademark. Although the registration system can make thescope and boundary of trademark right clear, it cannot guarantee that the generatedthat registered trademark has its core value it should have. First of all, from theperspective of historical evolvement, the trademark and trademark protection in eachhistorical period of development and its characteristics are summarized. The use oftrademarks can be traced back to ancient Rome, or even earlier, but then thetrademark is a maker of identity, which is significantly difference from the moderntrademark and trademark right. Along with the gradually expansion in geography,the distance between consumers and producers have been widened. Trademark beganto play as a more important communicate tool to consumers, and its use in the courseof trade also increases accordingly. Producers’ specific identity is unknown toconsumer. The only source of information regarding the products for consumers is thetrademark. The trademark has become an important tool for transmitting information.Accordingly, the law only provided protection against damages to its informationfunction. Protection in this period of time is mainly against intentional counterfeit andfraud. With the introduction of trademark registration, from a tool to communicateinformation, the trademark gradually shifted to an independent property, which can betransferred separately from the business. This change is The fundamental, becauseonce the trademark has been regarded as an independent property, people will paymore attention to the legal requirements of making them property, which isregistration. Secondly, from the point of view of the structure and function oftrademark, in order to accomplish the function, a trademark should have athree-element structure, which includes a sign, the product or service on which the sign is used and the recognition established in the minds of consumers through the use.The distinctiveness of trademark plays an important role in maintaining thethree-element structure of trademark, which ensures that the three elements are notconfused, and maintain close contact. Registered Trademarks which are not put toactual use are only perceptive signs, lacking the other two necessary elements of acomplete trademark. This kind of trademark cannot realize the function of indicatingthe source of a product or service.Thirdly, the object of protection of trademark is amark, which exists in the public domain. Making a sign in public domain a personalproperty, there must be a legitimacy reason; otherwise the trademark system itself willbe lack of a reasonable reason for existence.The legitimacy of the trademarkprotection can be explained from the jurisprudence, economics and moral aspects, andall these aspects are closely related to the use of the trademark. Finally, the author alsoanalyses the registration system of trademark right. Trademark registration systemaims to provide valid proof of material for the scope of rights, and provide usefulinformation about the protection of the rights of the public. Part of the reason is thatthe unregistered trademark is protection as well, which is an inevitable defects of thesystem itself. However, other part of the reason is that the system excessivelyemphasis on the form of acquisition and elimination of trademark right, whileignoring the real elements, which cause many trademarks which should not have beenallowed in registration book to appear in the registration book, and some whichshould not have been be promptly removed from the register to long retain in theregister. Relevant provisions of acquisition and elimination of trademark right shouldbe amended as a respond to the forgoing problems.In Chapter II, the relevant provisions are reviewed from the angle of comparativelaw. The modern countries mainly have three different modes for trademark rightacquisition, namely the trademark registration mode, the trademark use mode and themixed mode which combines the trademark registration mode, the trademark usemode. In different modes, the corresponding provisions regarding the conditions and procedures of trademark right elimination are different accordingly. In the use mode,trademark right is obtained on the basis of the use, and the registration is only surfaceevidence for trademark right. In registration mode, exclusive rights can be achievedthrough the simple action of filing for registration. There are two different types of themixed mode. They are the British way of protecting unregistered trademarks incommon law and registered trademarks in statute law of the British model, and theGermany way of protecting the registered and unregistered trademark in trademarklaw, treating use and registration as two parallel ways of acquiring trademark right.Traditionally, rationality of the use the mode is in line with the principle of fairness,which can avoid trademark rent-seeking phenomenon, while rationality of registrationmode is in line with the principle of efficiency, which can help clear scope andboundary of trademark rights to low the cost of the protection. However, from theanalysis of the operating status of the registration system, it is questionable whetherregistration mode can actually reduce the cost of rights protection in line with theefficiency principle. A simple registration system may in fact increase the social costof trademark system. Therefore, the correction of improvement of the registrationmode is an inevitable choice.Chapter III is based on China’s reality, analyzing China’s trademark law on therights of the relevant provisions of acquisition and elimination. In China’s trademarklaw, the trademark refers to both registered and unregistered trademark. Howevertrademark right only refers to the exclusive right to use a registered trademark. Thusthe unregistered trademark is in a very awkward position. On the one hand, ourlegislative recognize that in real life, there are a lot of unregistered trademark, the useof which worth administrating and regulating.On the other hand, our law does notprotect unregistered trademarks as a kind of exclusive proprietary rights. On thecontrary, only a weak and limited protection is provided for unregistered well-knowntrademarks or unregistered trademark with certain influence. The way of protection isonly against the improper cybersquatting. Exclusive trademark right can only be obtained through registration, and the use element was almost entirely ignored in theregistration procedure, which gave birth to the rent-seeking phenomenon of trademarkregistration. The relevant provisions of China’s trademark rights have led to a seriesof problems in the reality of the trademark law operation. For example, the protectionof unregistered trademarks are not sufficient; the phenomenon of trademarkcybersquatting is quite serious; a large number of registered trademarks are “deadwood”, which have never been putting into actual use; operation cost of trademarkregistration system is extremely very high. In addition, China’s provision regardingthe elimination of trademark rights also the cause many problems. The requirement oftrademark renewal is too low. The procurers of the revocation of trademarks not beingused for three consecutive years are not convenient. These led to problem that thetrademarks which should not be registered appear in the register and trademarks shallbe revoked cannot be timely cleared out from the register. These problems are due tothe reasons rooting in the history, the culture and the trademark practice in China. Atthe time of the third revision of China’s trademark law, it is necessary to amend therelevant provisions as a positive response to these problems.Chapter IV puts forward concrete ideas and solutions to specific problemsanalized in Chapter III. The general idea and the goal of amending relevant provisionsof our trademark right acquisition and elimination should be to achieve the trademarkfunction of distinguishing, weaken the administrative color of the provisions of thetrademark acquisition and elimination, and keep the integrity and authenticity of thetrademark registration information, which should be a use source of information oftrademark protection. In the registration process, the person who applies fortrademark registration should have actually used the trademark or have the intent touse it in trade. Accordingly, the relevant evidence of the actual use or the intent to useshould be submitted in the application for trademark registration. In addition,revocation due to improper use which causes loss of the distinctiveness of thetrademark revocation should be added to the law. At the same time, to improve the relevant provisions of the revocation of the trademark without the use for threeconductive is necessary. Finally, in the conclusion part, according to latest draftrevision of the trademark law released China’s National People’s Congress in2013and based on the analyses above, the author reviewed the provisions regardingacquisition and elimination of trademark right and made some suggestions for themodification of specific provisions.