Study On The Signification Of Use In Trademark Protection

Principle of first to use and Principle of first application both belong to empowering principles of trademark. During the long history of Commercial society, principle of first to use has always been the legitimate basis of trademark protection in main countries. However, our human society developed to Early 20th century, with social productivity improving and especially market economy having set up, principle of first application finally came into being and has gradually taken the dominance. The change of empowering principles of trademark from principle of first to use to principle of first application not only meets the efficient needs of market economy but also satisfies managers' safety expectations. Trademark Law of the Peoples Republic of China strictly implements the principle of first application, too. But review our Trademark Law, what is trademark use? For the use and registration of trademark, which is on earth the substantive source of trademark rights and value; furthermore, is trademark use able to remedy congenital defect of principle of first application and how to fix that, such questions are full of doubts. However, shortcomings of Trademark Law and vague of theoretical study lead to a series of troubled questions in operating principle of first application. For example, registered marks are paid homage to. On the contrary unregistered marks lack of adequate protection; rent-seeking action of trademark is as if rife and has severely influenced the economy order. Hence, research the significance of trademark use in trademark protection to clean up the perplexes, to intensify the requirements for registered trademark and to reinforce the protection of unregistered trademark. "trademark use" should sit at the core of trademark law again, in order to finally realize the systematization of trademark law itself and the balance of equity and efficiency. No doubt, this will possess important theory of meaning and considerable practice value. There are five components in the article:The first part summarizes the basic content of "trademark" and "trademark use". That the essence of trademarks is their distinguishing function can be argued from the perspective of legislation, theoretical definition and semeiology, etc. "Trademark use" means to apply marks to commodities for trading and gives birth to distinguishing function. Moreover, constitutive requirements of "trademark use" is analyzed. Then difficult and complicated cases of "trademark use" during the judicial practice are deeply probed into. Besides, a comparison of the "trademark use" of trademark rights holders and infringing parties indicates that their scopes are different.The second part creatively puts forward a theory that the object of trademark rights is Dual Progressive Protection, it consequently can clarify the relationship between "trademark use" and "trademark protection". Based on the dual progressive protection of object of trademark rights, merits and demerits of principle of first application are objectively discussed. Trademark distinctiveness, as the object of trademark rights, is dual. Trademark distinctiveness falls into distinguishing function which concerns the life-and-death of distinctiveness and goodwill that decides the strength or weakness of distinctiveness. Trademarks with distinguishing function are "vessel", and goodwill is "contents of the vessel". The object of trademark rights is progressive. Only when a trademark takes on distinguishing function, the strength and weakness of distinctiveness or trademark value is worthy of investigating. Whereas "trademark use" exactly engenders trademark distinctiveness and affects the strength and weakness of distinctiveness. Hereby, a series of matters during operating principle of first application are pointed out.In the third part, the analytic comparison of effective measures to repair principle of first application adopted by main countries is made from the point of "trademark use". "By other's faults, wise men correct their own".Based on the second part, deep analysis about the shortage of our trademark law is discussed. And then, an in-depth interpretation of legal rules of civil law and common law is put up. Many of their rules and regulations are desired to study and revise, for example, accurate orientation of "trademark use", revocation regulation and so on.The fourth part puts forward a suggestion to firm and consolidate the status of "trademark use" in Trademark Law from macroscopic guiding ideology and microscopic specific regulations. For guiding ideology,the use requirement of registered trademarks must be demanded and reinforced, at the same time the protection of unregistered trademarks should be attached importance to and intensified; For specific regulations, corresponding suggestions for improvement has been maintained on the basis of summarization of the third part.