The Position And Function Of Trademark Registration In Trademark Protection

Trademark is any sign or any combination of signs, which is capable ofdistinguishing the goods or services of one undertaking from those of otherundertakings. Trademark is a carrier of commercial goodwill. Producers or operatorshave the right to use the trademark exclusively and to prevent from arbitrarily usingby others. Those rights are named trademark rights which are protected by law.Acquisition of trademark rights can be only from the actual using instead ofregistering it. Trademark registration is just a procedure whose most important effectis to proclaim trademark rights themselves. However, according to the traditionaltheory, there are two ways of original possession on trademark rights. One is toacquire rights from using, the other is from registration. China adopts the latter one.Although, at some level, admitting trademark rights can be acquired from using,China does not accept this possession way in a broader degree, consequentlyexaggerating the effect of registration, which results in several problems, such astrademark squatting, inadequate protection for prior user, and lack protection for usersin good faith.This paper tries to analyze the status and effect of trademark registration in theprotection of trademark based on theoretical researches on system of trademarkregistration by experts, in combination with existing practical problems. The first partwill expound some important concepts of trademark legal system for paving thesubsequent discussion. The second part analyzes the essence of trademark registrationin terms of the nature of trademark rights, in order to make clear its status intrademark law system. The third part illustrates the role of the trademark registrationon the basis of practical issues and specific cases，and tries to propose solutions tothose problems. The last part draws a conclusion: trademark registration is not theoriginal way to acquire trademark rights, but only a procedural right for applicants.However, trademark registration plays an important role in protection of trademarkrights, such as to prove existence of rights, to improve the efficiency of legalproceedings, to definite the scope of rights, and etc. The view that the nature oftrademark registration is a program system but not a way to acquire trademark rightsis the key to essentially solve problems of trademark protection system in China andalso the prerequisite to understand trademark registration correctly.