Research On The System Of Acquiring The Right Of Trademark In China

This article discuss the unregistered trademark in the system to the copyright protection and the significance standard of the trademark reviewing mechanism. The full text is composed of three chapters. The first chapter gave the system to the trademark a brief introduction; The second chapter carried on the elaboration of the unregistered trademark protection question under the principle to our country trademark rights registration; The third chapter mainly explained the aspect choice of the significance standard in trademark reviewing mechanism.The first chapter summarily introduced that our country trademark obtaining system as well as the trademark obtaining primitive system and the reviewing mechanism.The trademark obtaining system forms two mainly kinds obtaining systems after the development gradually; First, obtaining the copyright protection according to the using; Second, does not register useing and registers the useing parallel, only registtation can have the trademark rights. The reason of trademark obtaining system changing lies in the development and the change of socio-economic structures. The using obtaining is more conforming to the copyright protection trend of development than the registration obtaining.But the pure using principle and the registration principle have the fatal flaw. Most effective does not lose the fair procedure is the proper attention to both useing and registers in the trademark true power of the function. Our country legislative pattern of the trademark obtaining consummates day by day after the revision. Our country trademark obtaining system's reviewing mechanism mainly include to the trademark formal examination and the substantive examination, namely includes to the trademark significance examination, the significance is the prerequisite to obtain the copyright protection , is the trademark protection's core and the soul. Whether it's strong and weak not only directly decide if the trademark can register,but also decide the size of the trademark right scope. So to study the trademark obtaining system's examination standard,we must begin from the trademark significance, Because the trademark significance is the basic condition that the trademark may obtain the registration and the legal protection .The second chapter explains the unregistered trademark protection question under the obtaining principle to our country trademark rights registration. Under the system various principles in the trademark obtaining, the unregistered trademark's legal status had not been taken. Unregistered trademark legal status internationally, because the various countries' politics economic environment is different, also has certain difference to the unregistered trademark status's confirmation and the guard mode. Countries and so on UK, US use the system law and the common law carry on the protection, the mainland legal system country use the written law protection. The unregistered trademark only occupies the number of enterprises established in our country 43.9%, also includes the situations that many Foreign-funded enterprise one to register several thousand trademarks , these data see our country industrialists and businessmen sufficiently to the registered trademark faint degree. But two revisions, has been clear about the localization to unregistered trademark's status, has given the reasonable protection. It already meets international society's requirement, also tallies with our country realistic society's reality. Our country trademark legal regime stipulated that the trademark commuter enjoys certainly holds, the use, the income, the disposition right, enjoys certain superior position power in the first right of use of having certain influence the unregistered trademark commuter, But give the special protection to the unregistered but the well-known trademark totally. The protection of unregistered trademark is one kind of historical tendency,It is also historical and the social progress performance to give the legal protection to the unregistered trademark.The protection of unregistered trademark is the legal fair principle manifestation. The protection of unregistered trademark is essential guarantee to promote the market's development and the displaying trademark function.It has the practical significance. Our country carried on the protection to the unregistered trademark is necessary.The unregistered trademark right is a civil right.The unregistered trademark had the indication function. But protecting the unregistered trademark is the manifestation of the maintenance fair market competition environment and the protection of consumer's rights.It is the manifestation of the trademark voluntary registration principle .But the unregistered trademark protection still had faced the difficulty in our country, our country obtaining to the trademark adopts the registration principle present, but registers obtaining principle does not adapt the registered trademark protection. What degree has been appropriate regarding unregistered trademark's protection is also a difficult problem. The unregistered trademark having been protected must have the trademark characteristic, undergoes the actual use, and enjoys certain popularity in certain region. To consummate our country's legal protection to the ordinary unregistered trademark ,we may begin from the following several aspects: The trademark obtaining adopts the registration principle primarily, using principle for auxiliary system; To expand the trademark protection's scope, to give the direct protection to the unregistered trademark; Further consummating related concept and technical expression; Entrusts with the trademark application priority to the using person of ordinary unregistered trademark right;To prominent the function of good faith principle in preventing the evil intention to snatch the note aspect.The third chapter mainly explaint the legislative aspect choice in significance standard of trademark reviewing mechanism. The trademark examination's primary coverage is the trademark validity, in first and significance. Various countries' trademark law clearly or suggestibly takes the significance as the trademark's essential requirements. The trademark significance question is a degree strong or weak question actually, its importance is self-evident. But our country trademark law is quite general to the significance stipulation, also some absolutely, lacks to the stipulation that the mark having the significance and through the long-term using is possible to obtain the registration of trademark .The trademark significance importance lies in it is the basic condition for the trademark obtaining the registration through the examination for the legal protection, is the most important factor for trademark function's displaying, the trademark significance's strong and the weakness directly relate the trademark right scope size. The reason that the law request trademark to have the significance, is stems from various consideration: Speaking of some trademark's first time user, if the trademark other people using is too close with this trademark, then the user may raise the objection after for the first time that the user's trademark does not have the significance ; Opposes to monopolize the ordinary glossary or the descriptive words and expressions in the market, It is similar in forbids to award sums up the type trademark rights policy. Only then maintenance trademark significance, trademark only then is the trademark.To the trademark significance definition, There actually has the very big flaw. When the examination persons of the trademark controlling organization examining the trademark, they have difficulty to solves the case well. The stipulation of the significance in various countries' law is abstract, but is indefinite. We must recognize that the significance's starting point should be consumer's cognition, the trademark significance is stronger, the consumer is higher to its cognition degree; Recognized that the angle should be the trademark function, between trademark marking distinguishes the characteristic the significance to be possible along with the using process, but strengthens unceasingly, Along with ultra intensity advertisements propaganda, big area sale campaign and long-term contrast using, the trademark marking difference characteristic can strengthen unceasingly the significance; Recognized the basis is the consumer cognition confusion is possible, to one trademark with significance, the consumer can judge it correctly generally and does not send with the specific trademark or service contacting with mistakes. Although our country's legislation about significance advanced much.There had the place which needs to consummate still, we probably can find some profit from "Trademark law" in Taiwan, the definition was"should make the general commodity purchaser know the trademark significance meaning indication, it's sufficiently marking for the commendation commodity, so as to and the commodity distinguished with other people", or might introduce the recognition in the related legislation and the discrimination concept into the law, to avoid occuring the different meanings in the suitable process.