Research On The Perfection Of Chinese Trademark Registration System

Trademark registration system prescribed by the Trademark Law of our country stipulate that prior application principle is applied for the application of trademark registration,and completely unaware of its usage or intended usage for the applied trademark.With the further advance of our reform and opening policy,the establishment of socialist market economy system,and situation conversion of the accession to the World Trade Organization,the Trademark Law of our country has been revised four times accordingly,and gradually evolving to the trademark registration system characterized as the closed relationship among trademark usage and registration.The most classic sign is that in the Trademark Law Amendment of 2019,the stipulate named that “malicious trademark registration application not for the purpose of usage shall be rejected” is added.However,there is still a certain distance between the current Trademark Law of China and the development of social situation.In the field of trademarks,there are still some disadvantages such as malicious registration,trademark hoarding,trademark holding and so on.Aiming at these phenomena,“Research on the perfection of Chinese trademark registration system” is selected as the topic of my PhD dissertation,which investigates the issue related to the connection between trademark usage and registration in detail.The basic viewpoint of this thesis is that the trademark registration systems from all around the world are divided into five categories as follows.First,the registration system involving production of trademark rights simply by trademark usage,meaning that trademark rights are produced only through trademark usage,whereas the rights protected by Trademark Law are not produced by trademark registration.Second,the registration system involving production of trademark rights simply by trademark registration,meaning that trademark rights are produced only through trademark registration,whereas the rights protected by Trademark Law are not produced by the usage of unregistered trademark.Third,the registration system involving production of trademark rights by the usage and registration of trademark,meaning that trademark rights can be produced through both trademark usage and registration,which are also protected by Trademark Law.Fourth,the registration system involving production of trademark rights by trademark registration based on the usage,meaning that trademark rights can be produced through “usage plus registration” of trademark,and trademarkusage is a necessary condition for the approval of trademark registration.Fifth,the registration system involving production of trademark rights by trademark registration but production of rights and interests by trademark usage,meaning that trademark rights can be produced through trademark registration,and the rights and interests protected by Trademark Law are produced by the usage of unregistered trademark.The above-mentioned five different types of trademark registration system can be collectively named “registration system” for short.This thesis holds that the trademark registration system of china should be belonged to the model involved with trademark registration producing trademark rights,and trademark usage producing rights and interests.In the respect of the acquisition system of trademark rights for our country,there exist a loose relationship between trademark registration and trademark usage.Therefore,it is proposed that at the stage of trademark registration,trademark usage(including intending usage)is selected as a condition for trademark registration to improve the degree of their correlation,thus building the trademark registration system of China characterized as based on the usage.In addition to the Introduction and conclusion,this thesis includes five chapters as follows:Chapter ? discusses the basic knowledge of trademark registration system.Firstly,the basic theories of trademark registration system are analyzed.As an official procedure,trademark registration is characterized by procedural,legality,administrative,unilateral features and so on.Due to its different utility,the properties of trademark registration can be characterized by authorization,establishing rights and commixing.Secondly,the construction elements of trademark registration system are analyzed,including the essential and optional ones.As the product of legal system,the trademark registration system has many functions such as ensuring trade safety,saving economic sources,and safeguarding market order,and these functions enable the legislative purpose of the Trademark Law to be realized.Then,the historical trace of trademark registration system is summarized.The procreant background of trademark system indicates that,the trademarks are developed from free usage to registration,and the trademark registration system emerges followed by the production of trademark system.This chapter analyzes the development trend of trademark registration system from France,Britain,America and Germany.The developments of trademark systems in various countries have greatly promoted the internationalized protection of trademark,which leads to the globalization of trademark registration.Finally,according to different ownership modes of trademark rights,the trademark registration systems are reclassified into the following fivecategories: First,the registration system involving production of trademark rights simply by trademark usage;Second,the registration system involving production of trademark rights simply by trademark registration;Third,the registration system involving production of trademark rights by the usage and registration of trademark;Fourth,the registration system based on the trademark usage;Fifth,the registration system involving production of trademark rights by trademark registration but production of rights and interests by trademark usage.Chapter ? analyzes the institutional foundation of trademark registration system based on the usage.And the rationality and legitimacy of this system are demonstrated from the perspective of philosophy of law,economics of law and jurisprudence.The whole trademark right can be obtained by adding the requirement of usage,which conforms to Locke's labor theory.Also,the trademark registration system based on the usage can promote the use of trademarks and maximize social benefits,which accords with Bentham's utilitarianism principle.The factor of trademark usage is selected as the requirement of trademark registration,which not only safeguarding the marketers to apply for registration freely,but also preventing malice registration effectively.Increasing trademark usage requirement can realize the effective distribution of trademark resources,and make trademarks flow to the crowd with usage needs,which resulting in a fair value goal.The efficiency of trademark registration can also be improved by system design,and thus achieving effective balance of fairness and efficiency.The usage requirement is regarded as the condition of trademark registration,which promotes the use of trademarks and arises goodwill.Chapter ? analyzes the structure,advantages,and disadvantages of trademark registration system of China.Firstly,its historical evolution is analyzed.Chinese trademark registration system originated from the “trademark registration trial regulations” at the end of Qing Dynasty,and developed in the period of Northern Warlords government,Nanjing national government,the Liberated Areas and New China.The Trademark Law of our country has been revised four times accordingly,and gradually improved in the aspect of the relevance between trademark registration and usage.Secondly,the constituents of Chinese trademark registration system are analyzed,which including substantial and procedural requirements needed for trademark registration.From a perspective of the positive effects of Chinese trademark registration system,it shows that the design of trademark registration procedure is conducive to rapid registration.The adoption of comprehensive review principle is favorable for improving the quality of trademark examination.For some unregistered trademarks,properprotection of the rights and interests of the prior right user is helpful to prevent malicious registration.And the design of cancellation procedure involving un-usage for three consecutive years is conducive to preventing trademark hoarding.In general,there are three main disadvantages such as trademark malicious registration,trademark hoarding and trademark holding,which are originated from the limitations of trademark registration system of our country.The source of above problems comes from system defect within itself.That is to say,a closed relationship between trademark registration and trademark usage is lacking,and incomplete protection of the rights and interests of the prior right user is applied to unregistered trademarks.Chapter ? observes the trademark registration systems of foreign countries,with emphasis on the relationship between trademark usage and trademark registration.In this chapter,four representative registration systems are selected as the study subjects,with the corresponding countries and regions are America,European Union,Germany,and Japan,respectively.It is concluded that for the application of trademark registration in America,the evidence or statement of relevant trademark usage must be submitted,otherwise the registration is not allowed.In European Union,trademark rights are produced through trademark registration,whereas the rights protected by Trademark Law are not produced by the usage of unregistered trademark.In Germany,trademark rights can be produced through both trademark usage and registration.In Japan,trademark rights can be produced through trademark registration,but some rights and interests generated from trademark usage are protected by Trademark Law.Based on previous studies,a comparative analysis is conducted on trademark usage,trademark registration and their relationship.It can be concluded that regarding to the countries where trademark registration system based on the usage,usage behavior still plays an important role.There are no so-called trademark rights without usage,and trademark registration is closely associated with trademark usage.However,no close relationship between trademark usage and registration is revealed in the other three types of registration systems.In the end,the enlightenment for the perfection of Chinese trademark registration system from foreign investigation is that the design of trademark registration system based on usage has become the optimum improvement path in China.Chapter ? proposes some suggestions on the perfection of trademark registration system of China,which is designed as a registration system based on trademark usage.And the specific designs are proposed,which including solution principles of the conflict over trademark registration application,review procedures of trademark registration application,revision procedure perfections of trademark registration system,and designof the corresponding legal provisions.The design of these provisions is based on improving the correlation degree between trademark usage and trademark registration,and strengthening the protection of the rights and interests of the prior right user for unregistered trademarks.Compared with the current trademark registration system,the perfected registration system based on usage inherits positive effects of the former,and plays a positive role at some level in curbing trademark hoarding,and preventing preemptive registration and trademark holding,which enhancing the efficiency of Chinese trademark registration system in the whole.