The Review And Reflection On Trademark Protection Legal System In China

The earliest trademark protection was the UK's counterfeiting actions. At the beginning, the basic of legitimacy of trademark protection was trademark use. Trademark law protected the good will obtained from the trademark use, and thought that the good will as a kind of property was lawful. With the dramatic increase in the number of trademarks and the increasingly fierce competition in market, administrative management on the trademark became a problem, and the right to the exclusive use of a trademark also needed a more authoritative form to be fixed. At this time, trademark registration came to appear. Undeniably, from the perspective of trademark registration, the efficiency of administration and the stability of trademark rights have got an important guarantee in the trademark protection. But, because people took more attention on the trademark registration which is convenient and efficient, trademark use which is the essence of the trademark protection was overlooked. If a trademark has not been used, it is not impossible that have the function of distinguishing sources between two producers, so this trademark is not a trademark in the real sense and can not protected by law. Fortunately, with the in-depth understanding and rational response of the nature of trademark protection, trademark use which is very important in the process of trademark protection once again become the focus of study in many countries, and China is one of them.At present, there are many scholars in China proving a theory that the essence of trademark protection is the protection of trademark use from different angles, For example, trademark use decides the scope of trademark protection, the use of registered trademark should be required, unregistered trademark protection is justified, the expansion of well-known trademark protection is necessary, and so on. These research results have great positive implications. But, these papers usually focus on some specific system problems of trademark protection. So, on the one hand, the study on the basic theory is poor, the lack of depth and persuasive is present in these research results; on the other hand, the study in trademark protection lacks systematic, comprehensive and deep research results on the sense of specific research methods. This makes the research results more scattered and fragmented, and the reference value of these research results have been weakened to some extent. "Trademark use" is an indispensable factor for the study of trademark protection, is the essence and source of legitimacy of trademark protection. Therefore, studying trademark protection from the perspective of trademark use has a profound theoretical significance and practical significance.Text is divided into five chapters:Chapter I briefly discusses trademark use and trademark protection. Through the analysis and conclusion on the basic concepts of trademark use and trademark protection, the historical evolution of trademark use and trademark protection, and the internal relation of trademark use and trademark protection, redefines the concept of trademark use, and reveals that good will plays the important role in the process of constructing the relationship of trademark use and trademark protection.Chapter II researches the theoretical basic of trademark protection from the perspective of trademark use. Through the analysis and interpretation of the origin theory, the philosophical foundation of law, and economic theory of trademark protection from the perspective of trademark use, demonstrates that trademark use is the source of the legitimacy of trademark protection.Chapter III analyzes the status quo and referential significance of trademark protection of U.S. from the perspective of trademark use. Through the analysis and presentation of determining the scope of trademark protection, requiring the use of registered trademark, protecting unregistered trademark and well-known trademark on the theory construction and system design from the perspective of trademark use, discusses the referential significance of trademark protection of U.S.Chapter IV analyzes the status quo and disadvantages of trademark protection of China from the perspective of trademark use. Through the analysis and presentation of determining the scope of trademark protection, requiring the use of registered trademark, protecting unregistered trademark and well-known trademark on the theory construction and system design from the perspective of trademark use, summarizes the disadvantages of trademark protection of our country.Chapter V gives some advices on improving the system of trademark protection of China from the perspective of trademark use. On the basis of referencing mature theory and useful experience of the United States, gives some advices for improving trademark protection of China. For example, use "confusion theory" to determine the scope of trademark, strengthen the use requirements of registered trademark, increase the intensity of unregistered trademark protection, and introduce "dilution theory" for the protection of well-known trademark. Aims to improve the theory and system of trademark protection of China; we must improve the status of trademark use in the system of trademark protection of China as soon as possible.