Research On Legal Protection Of The Use Of Trademarks In China

The use of trademark is a legal act, which refers to using the specific trademark signified to generate the secondary meaning or just influence the existing distinctiveness by using the secondary meaning of trademark signified. Hereby, the use of trademark can be divided into positive use and negative use as two types inherently. The two legal effects called trademark right and trademark infringement are treated accordingly as the results of the two types above. Objects of Intelligence property is a sign combining secondary meaning in essence, in which way they can be unified in form. Secondary meaning of trademark is implemented by the positive use, which is a labor behavior by the trademark owner. So the generation of trademark accords with Locke's theory of property-labor, and trademark right is of property right. As inherent requirements of right, we should establish trademark fair use institution and related sign use institution to show the boundary of positive use based on the right of trademark. In the trademark use, trademark right means the law protecting the individual interests, so the trademark right becomes the internal power to the trademark use. The purpose of protecting 'the use of trademark' by law is to protect the legitimate interests of trademark use, including individual interests, social interests and national interests, the latter two aspects of interests should be protected by economic law.As the embodiment of labor right from constitution right, we should establish the prior use right used to cooperate with the priority right in current law, to protect the unregistered trademark as a whole. The protections of unregistered trademark and well-known trademark are essentially in the same protected mode of propertization, i.e. protecting the behavior of use and the goodwill as the results of the trademark use at the same time, though there is different emphasis between them. To regulate the negative use of well-known trademark, we should establish the protection mode on the basis of trademark dilution system instead of the one based on confusion theory, so as to comply with the tendency of world trademark protection.Trademark protection is a systematic project, which is composed of trademark law as special act and civil code, esp. intelligence property part, together with anti-unfair competition law as general protection part. All of the components should be operated cohesively so that the interests showed in legitimate use of trademark can be authentically implemented and protected by the trademark institution as a whole, making the trademark to play the coral role of commodity in practice.