| As a private law, Trademark Law constructs around rights inevitably. The mechanism of trademark rights, namely, the system how the trademark rights are acquired, also naturally becomes the key problem in the trademark law construction of different countries. The trademark legal system in the modern sense has a development history of more than 160 years, during which, different countries around the world have explored different trademark rights acquirement systems from two aspects: the use and the registration. Today, the registration acquirement system is adopted by most countries. But what is undeniable is that the single registration acquirement system breaks the connection between the brand and its value origin, which objectively promotes the bad phenomenon, like“the scramble for registering trademark” and “the trademark enclosure”. This also makes people think about the registration acquirement system again, and some theorists even agree on the traditional using acquirement system. Therefore, how to correctly understand the registration acquirement system, whether its legitimacy basis exists in modern society, what position the Chinese trademark law should stand, what specific measures should be taken in order to resolve the disadvantages if the registration acquirement system retains, and so on, are all problems that should be solved by the theoretical research. The paper takes the registration acquirement system as the research object, investigates the historical evolution of trademark rights acquirement system, explains the theoretical basis of the registration acquirement system, researches the system operation mechanism, responses to the above problems systematically, and furthermore, proposes the perfection suggestion of the Chinese trademark law.Apart from Introduction and Conclusion, this paper includes five chapters, 180,000 words in all.Chapter I observes the history evolution of trademark rights acquirement system. Seeing from the history, the evolution of trademark concept leads the reformation of trademark rights law construction. The trademark development history clearly shows that, the trademark concept changes from the tool to the property. When a mark is only a responsibility tag or a communication tool, the legal protection structure is just primary; but, when the mark is upgraded to a height of property, it's inevitable to provide better protection, so the legal structure of the trademark rights is more complex and sophisticated, the liberal use of brand develops to the registration, and the trademark rights protection way also changes from “action of passing-off” to “tort action” for priority. As an important part of the structure of the trademark law, the trademark registration system provides a thinking mode of bureaucracy property, so, the brand wins the credit support of bureaucratic management and the property rights definition is more convenient and clearer. Up to now, the initial using acquirement trademark rights get a new way of confirmation by the registration system. Today, although there are two paradigms of using acquirement system and registration acquirement system in the world, the former has “changed”. The typical cases are, in England, two modes of using acquirement common law and registration acquirement statutory law exist; in USA, a complete registration system is established when retaining the using acquirement system. Meanwhile, the registration acquirement system also adopts the rational factors of the using acquirement system. The typical cases are, in Germany, the statutory law mode combining the registration acquirement and the using acquirement exists; in France, etc. the function of using acquirement is emphasized on when retaining the registration acquirement. But overall, the registration acquirement system has been accepted by most countries and relevant international treaties. As for China, the registration acquirement system is established from the first trademark law in the history. Although it comes originally from the western powers' force coercion, it has become the foundation of Chinese trademark law system after more than a century of practice.Chapter II demonstrates the legitimacy basis of the registration acquirement system. The trademark right has unique attributes of different from the real right and other rights: in the term of the protected objects, it protects both the trademark symbol, and the goodwill that the symbol indicates; in the term of the right connotation, it has both the natural attributes of private rights, and the public policy attributes of system products; in the term of the right position, it should not only stand in the perspective of the holder's centralism to protect his interests, but also in the perspective of the consumer's centralism to protect his interests. Trademark rights characteristics are interwove with various interests contradiction which determines “impure” legitimacy basis of the trademark rights acquirement. From the aspect of the philosophy, it should be demonstrated not only from the labor theory of property rights, but also considering the factors of utilitarianism. It's because there are many obstacles when the labor theory of property rights is used to demonstrate the trademark rights acquirement, and because has the colour of instrumentalism when the trademark occurs, and after the upgrading to rights, it is still bearing the utilitarian considerations to maximize social benefits. From the perspective of the law and economics, the trademark rights acquirement system must also coordinate the relationship between use and registration, combine the value pursuit of fairness and efficiency, and balance interests between the trademark holder, the business operator, the consumers, and the public interests. Under the condition of the fairness, compared to the using acquirement, the registration acquirement is more efficient, and has comparative advantages of rights stability, clear scope, easy search, easy proof, transaction security, and regulation convenience, which also has the foundation of legitimacy.Chapter III discusses the system functions and the attributes of the registration acquirement. As a system product, the registration acquirement system has functions of rights presumption which confirms the trademark rights subject and scope, the static and dynamic security right publicity of protecting the trademark rights, the maintenance of the public interests and public order, and information retrieval decreasing the trademark information search costs. The four major functions effectively guarantee the realization of the trademark law legislative purpose, and is also the value of registration acquirement system. In the term of the system attribute, there is a quarrel in the research circle: whether the trademark right obtained by registering is the procedural or substantive, and is the administrative organ authorized or confirming right. This paper explains that it's certain that the registration can show the “prima facie evidence” and other procedure rights features, but in the system function, it's not just a right declaration, but more instructive in right presumption. In the term of the trademark right contents, it is the substantive right. If one denies that the registration can obtain the substantive right, he denies actually the system difference between the registration acquirement and the using acquirement, which doesn't conform to the realistic logic of related Chinese trademark law. If the “authorization theory” is realism, it's true that the “confirming right theory” is idealism. Why the two different views occur is that the theorists hold in different positions and angles, unfavorable to make confirmative judgments. It's the correct way of the system development and improvement to both admit the empowerment properties of registration, and emphasize the actual use after registration.Chapter IV analyzes the operational mechanism of the registration acquirement system. The registration acquirement system determines that the trademark right doesn't generate automatically, but shows trace of “technical design” everywhere. The trademark laws of all countries clear the components of trademark to further propose the standards of significance, non-functional, legitimacy and priority, etc., and to set up the essential conditions for trademark right acquirement; they construct the operational mechanism around the examination, dissent and announcement of invalidation to examine and monitor the trademark right acquirement which can conform to the system design requirement. Otherwise, as for the mode, different countries have different choices. Concerning the essential conditions of the registration acquirement, the paper mainly discusses the setting and expanding of the trademark elements, judgment of obviousness and liability fixation doctrine when failure, judgment of non-function and applicable objects expanding, legitimacy connotation and definition of “other negative influences”, prior rights and so on. In the term of operational mechanism of the registration acquirement, it mainly discusses the considerations, contents, advantages and disadvantages concerning the active examination system and inactive examination system aiming at the relative causes in examination, the dissent preposition and dissent postposition in dissent, and the civil litigation and administrative litigation settings in announcement of invalidation. It also assesses the mode choosing of Chinese trademark law.Chapter V puts forward to the suggestion to complete the registration acquirement system. In general, the registration acquirement system has the disadvantages of malicious registering, trademark enclosure and unregistered trademark protection imbalance, etc., which is obvious mostly in China and the root of the problems come from the system logic mainly. Otherwise, Chinese trademark law can never “change its flag” in the acquirement system due to those disadvantages, but adopt “Local Reformism”, which means that, at the premise of insisting on the registration acquirement system, more practical and efficient system design should be made to overcome and limit those negative factors. Among them, it's a key problem how to handle the relationship between the registration and using, registered trademark and unregistered trademark. Therefore, we should not only focus on the registration acquirement system reformation, but also establish the external supplementary systems to assist it. Specifically, the following measures can be taken: to further purify the voluntary registration system by cutting the compulsory registration “tail”; to clarify the using requirements of prior trademark in the trademark dissent and invalid procedure by introducing the rational factors of “using intention”, to further coordinate the relationship between the registration and using; to further complete the nonuse revocation system by strictly defining the trademark using, rationally establishing the causes of pullback, setting non-tort liability and enhancing the monitoring of 3-year using; to further balance the interest distribution between the trademark user and holder by building the trinity trademark co-existence system including legal coexistence, agreeing coexistence and judging coexistence; to further make up for the inadequate protection for the unregistered trademark and enhance the coordination between different laws and regulations by reforming the prior using system, and completing the related rules of the anti-unfair competition law. |
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