A Study On Trademark Right Acquisition System

The study of “What is the basis of that we acquire the trademark right” has been a hotspot of the Trademark Law all along. Recent years, as our country has undergone a series ofrelated cases which caused strong reaction and far-reaching impact, the academia acceleratethe pace of rethinking and reconstruction of existing trademark rights mechanisms. On theoccasion of the third revision of the Trademark Law, the issue that how to overcome theincreasingly prominent drawbacks of the registration mode, and reconstruct a more reasonabletrademark acquisition system which emphasizes both the substance and form, and reflectsboth fairness and efficiency instead, has become the historical task before us. This article is inthe context of the issue and expanded.The paper consists of introduction, body and conclusion, in which the body isdivided into five parts.The first section summarizes the drawbacks of existing registration mode. This part byvirtue of a large number of empirical materials summarized three consequences of theregistration mode: fueling trademark enclosure movement, aggravating the burden ofadministrative review, spawning the symbol worship psychology, and revealed the harm anddiscussed. Through the reveal, this part is intended to raise questions and provide somerealistic basis for modification of the registration mode.The second part examines the history of the registration mode. In this part a historicalretrospective method is used to comb the history context of the trademark achievedmechanism from use mode to registration mode, and the reason why this steering occurs isemphasized. In addition, this section also briefly introduces our institutional history of thetrademark rights mechanisms. By virtue of tracing the registration mode, this section isdesigned to indicate that the trademark rights mechanisms should advance with the times,thereby provide the historical basis for modification of the registration mode.The third section demonstrates that application and registration are of Sollen intrademark rights mechanism. By virtue of legal philosophy, semiotics, economics,information theory and other analytical tools, this part points out that application is the sourceto achieve trademark rights, and no use, no trademark rights. But application mode has somebirth defects such as lag, fuzziness, and opacity, and lacks of efficiency and operability. Whileregistration is the basis of the trademark, and a programming; its technology nature also determines the limitations in the form of the registration mode. Therefore, the ideal trademarkrights mechanism should insist on the principle that takes both fairness and efficiency intoaccount, and emphasizes application and registration equally. This section is intended toprovide jurisprudential support for the improvement of the registration mode.The fourth section introduces the trademark acquisition system of some counties.Nowadays a lot of are exploring the ideal trademark rights mechanisms, and some haveachieved certain results. Broadly speaking, there are three main paths: Firstly, the UnitedStates and Canada adhere to the principle of application mode, and grant certain programadvantages for registration mode; Secondly, most civil law countries adhere to the registrationmode, and furthermore give the application mode limited protection; Thirdly, some countries,especially the UK and Germany, protect both application and registration mode equally. Thissection is intended to provide extraterritorial experience for the improvement of theregistration mode.The fifth part is the concluding part of this article. In the light of this section, to exceedregistration mode is imperative, for our existing mechanism has too much defects.Improvement of the trademark rights mechanism is a systematic project, in which firstly weneed to establish the affirmative principle requesting both application and registration, inwhich application is the substantial requirement, and registration is the form requirement; inorder to obtain trademark rights, neither is dispensable. And then we should ascertain theconcept of application of the trademark to get over its uncertainty. Finally, we should granttrademark some synergistic protection by virtue of competition law. In addition, this sectionalso gives concrete recommendations to modify the law.This part is the focus and core of the article.