Fairness And Efficiency Model Of Combination

The acquisition system of trademark right probably includes two basic principles:one is the using principle, namely:the acquisition of trademark right is based on the fact of usage; another is the registering principle, namely:the acquisition of trademark right is based on registration procedure. The using principle is helpful to protecting the interest of prior user. But the absolute using principle is inconvenient to manage、search and publish the trademark and easily creates the disputes about the acquisition of trademark right. Finally, it will reduce the efficiency of the acquisition system of trademark right. The registering principle certainly ensures the efficiency of the acquisition system of trademark right. But the absolute registering principle is very ease to result in the speculation of preemptive registration and causes unfairness. America is the country of emphasizing the concept of usage, and the enaction of its trademark law is based on the "Trade Terms" of Constitution. Actually speaking, the acquisition system of trademark right of America is the using principle. However, America introduces the registering principle on the basis of the using principle and sets a series of the registration procedure in the Lanham Act which issued in1946. Since the "practical use" of registration procedure is singleness and requires prior usage before applying for registration, Lanham Act results in investment risk, differential treatment, institutional conflict and so on in practice. So America revises the acquisition system of trademark right of Lanham Act in a larger scale in1988. To make up the deficiency of practical use, America adds "intent to use" to the registration procedure. The amendment of "intent to use" makes the acquisition system of trademark right of Lanham Act absorbing both the advantage of using principle and the advantage of registering principle. As the crystallization of the making and editing of American trademark law, Lanham Act achieves the effect of combining equity with efficiency on the acquisition system of trademark right and becomes a model at last. For our country, the registering principle of the Trademark Law is absolute and overly lacks the content of using principle, so it causes much more unfairness. Now this is the third times that the Trademark Law is amended, we should learn from the practice and the content of Lanham Act and rebuild the acquisition system of trademark right, so as to achieve the effect of combining equity with efficiency. On the one hand, the Trademark Law should emphasize the importance of trademark usage to the acquisition system of trademark right. It should add trademark usage on registration as a condition and take example by the "intent to use "of Lanham Act. On the other hand, the Trademark Law also should protect the benefit of prior use of trademark and build the system of prior usage right of unregistered trademark.