| The plight of judicial adjudication in modern trademark disputes made the writer gradually recognized the need to clarify the multiple complex structural relationship between the new and the old,the traditional and the modern,as well as the East and the West in the field of trademark legal system.Only by understanding the overall picture and concrete development of modern China's trademark legal system,can we locate the root cause of legal dilemma and solve the problems faced in the construction of the trademark legal system today.Collecting as many historical materials as possible,such as Chinese trademark legal files,cases,inscriptions and documents,and then using comparative law,literature analysis,statistical methods and other historic and legal research methods based on above collection to reconstruct the localization interpretation framework of the modern China's trademark legal system and its actual operation is therefore feasible.Moreover,it deeply explores the history of the modernization of trademark legislation and its implementation mechanism,highlights the uniqueness of the history of the formation of China's trademark and trademark law,predicts the future development of China's trademark legal system,establishes a mutiple teademark dispute resolution mechanism,and appropriately absorbs social organizations such as chambers of commerce to participate in trademark legislation and dispute resolution,has such academic and practical significanc.In addition to the introduction and conclusion,the body part consists of four chapters.The introduction elaborates on the subject of this study topics of origins,research significance,literature review,research methods.Literature review includes five aspects:modern trademark legislation research,modern trademark dispute research,Chinese and foreign modern trademark negotiation research,modern trademark law comprehensive research and other research on modern trademark legal system,which reviews academic history of modern trademark legal system.Along with deep study on research history,the writer points out the possible problems to lay the foundation of this study topics.So as to further clarify the etymology and concept connotation of the trademark,to understand the interaction of actual operation between the statute trademark law,judicial precedent andinterpretation cases,and to prove that the modernization of the China trademark legal system is not a completely passive process,but a hybrid process that is formed by the combination of internal demand and external pressure.The first chapter The Sprout of the Ancient China's Trademark Legal System consists of three parts.The first part Analysis of Trademark Meaning carries out the etymology archaeology of Chinese Shang Biao and finds that the word Shang Biao in Chinese is a product of modern times.At the beginning of modern times,the word was not fixed but had meaningful similar synonyms.The second part The History from Mark to Trademark negates the theory that thinks Engraving names and Engraving places of origin are trademark activities,according to the modern meaning of the word trademark and its meaning back in ancient China,this part expounds that the word zhaopai and fangdan in the Song Dynasty had already had the meaning of trademark in modern times,and further confirms Mr.Zheng Chengsi's conclusion about White Rabbit Logo can be called a real trademark with full historical facts.The third part The Sprout of Trademark Legal System in the Qing Dynasty believes that the history of China's trademark legal system conformed to the formation of the world's trademark law,which was also later than the emergence of trademarks.The local government officials in the Qing Dynasty banning the ban and the industry association establishing regulations can be described as the sprout of China's trademark legal system.But the imperialist aggression interrupted the natural process of the development of China's trademark legal system.The second chapter The Process of Modernization of China's Trademark Legislation consists of three parts,i.e.The Beginning of Trademark Legislation Modernization,The Shaping of Trademark Legislation Modernization and The Optimization of Trademark Legislation Modernization.With examples like Trademark registration regulations set in Qing Dynasty,the Beiyang Government's 1923 Trademark Law and the National Government of the Republic of China's Trademark Legislation,this chapter provides a dynamic panorama of the modernization of China's trademark legislation.Through the comparison between these trademark laws and their comparison with Japanese trademark laws,it is not hard to find thatalthough the formulation of modern trademark law was tortuous,the transplantation of Western laws had accelerated the modernization of trademark law and satisfied the domestic economic development needs.After three stages of the Qing Dynasty,the Beiyang Government and the National Government of the Republic of China,China's trademark legislation finally reached its modernization and opened a new chapter in the trademark legal system by taking the trademark laws of various countries into account and combining the history and practice of Chinese trademarks.The third chapter The Implementation of China's Modern Trademark Legal System mainly discusses the actual operation of the modern trademark legal system in administrative and judicial respect.The first part Regain and Unification of Trademark Administrative Power discusses the establishment of trademark administrative authority,the Trademark Office,which reflects the difficult course of regaining trademark administration held by foreigners for more than 20 years,and expounds the division of management rights of trademark administration during the Beiyang Government and the National Government of the Republic of China and their efforts to unify trademark administration.The second part Establishment of the Trademark Dispute Resolution Model introduces the trademark dispute resolution mechanism and its procedures of the Beiyang Government and the National Government of the Republic of China with cases.At that time,the trademark dispute resolution model can be divided into two categories: administrative remedy and judicial remedy.Judicial remedy comprised administrative trials and judicial judgement,which shows that the settlement mechanism of modern trademark disputes was quite complete.Through the statistics of modern trademark interpretations and judgments,the third part The Formulation of Trademark Interpretation Cases and Judicial Precedent" finds that China chose the path of civil law system in the process of studying Western law,instead of common law system,at the end of the Qing Dynasty.This makes the role of the trademark interpretations and judgments particularly important.In the period when China's modern trademark law was imcomplete or imperfect,the trademark interpretations and judgments served to clarify the meaning of the law and confirm the validity,as well as to play the role of supplementing vulnerabilities andcorrecting rules.The fourth chapter Influence Factors of the Modernization of China's Trademark Legal System consists of two parts,which specifically evaluates the effects of various factors on the modernization process of China's trademark legal system and their influences and roles in modern trademark legislation and implementation.The first part Intervention of Western Powers states that in the process of modernization of China's trademark legal system,the intervention of Western powers is comprehensive,mainly in four aspects,say,the objection to China's trademark legislation,the control to China's trademark administration,the intervention to the Huayang Trademark Controversy in China and the implementation of Strategy to Chinese Trademarks.As we have already discussed two issues,namely,the objection to China's trademark legislation and the control to China's trademark administration,this part only deals with the intervention to the Huayang Trademark Controversy in China and the implementation of Strategy to Chinese Trademarks.The second part Promotion of Domestic Power discusses the role of various domestic forces in the modernization process of China's trademark legal system: Firstly,how the government officials at various stages of the Qing Dynasty,the Beiyang Government,and the National Government of the Republic of China rationally chose between irrational mass and strong Western powers,while withstanding the pressure of domestic public opinion,they took efforts to fight for national power,to realize the duality of the traditional and modern trademark legal system,in this process,the modernization of trademark legal system began;then the writer elaborates the modern scholars' researchs on the trademark legal system and the intellectual support they provided to accelerate the modernization of China's trademark legal system.What comes the last is the conclusion.On the basis of the previous four chapters,the writer summarizes the modernization of China's trademark legal system.It is believed that from the perspectives of the improvement of trademark legislation,the effect of trademark law implementation,the localization and the promotion of legal sense,China has completed the modernization of the trademark legal system from the late Qing Dynasty to the Republic of China and has built up a well-established trademark legal system as well as an effectivetrademark dispute resolution mechanism,which maintained the order of commercial transactions,guaranteed the interests of trademark owners and product quality,and encouraged the economic and social development.The modernization of China's trademark legal system features with mixed modernization,combination of Chinese and Western culture,promotion various domestic forces,keeping up with the times as well as sequential development.China's modern trademark legal system has not yet realized the organic integration of the Western trademark legal system and the traditional Chinese one,and either the modernization of the trademark legal culture,resulting in the incompatibility of trademark legislation,trademark law implementation and the trademark concept.Therefore,it is necessary to further study the modern trademark legal system on the ground of legal culture and value selection to find out how to integrate them to achieve the organic integration of the outbound and endogenous order. |
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