A Comparative Study On The Acquisition Of Trademark Rights Between America And China

Acquisition of trademark rights has been an important content in the trademark law. There are three kinds of acquisition of trademark rights. The first kind is the acquisition for use, the second kind is the acquisition for register, and the last one is the mixture of the first two. It plays an important role of the comparative study on the acquisition of trademark rights, especially for prevent trademark trolls, because it is one of the necessary step in acquisition of trademark rights. Notably, with the rapid development of economy, trademark trolls problem becomes more and more serious. Even though trademark rights is got for use in America, trademark trolls have occurred since the Lanham Act took in practice. And in China,while getting trademark rights for register, trademark trolls are common. This article is from the comparative study of the acquisition of trademark right between China and America, and based on the analyze of the prevent trademark trolls of the two countries. Thus, making the acquisition of trademark rights more perfect, then reducing the trademark trolls behavior.This article has four parts. The first part is the comparison of trademark rights between China and America. In this part, the writer introduces the acquisition of trademark rights and their respective advantages and disadvantages, and then concludes their sameness and difference. The comparison of the difference is from some aspects, such as Theoretical basis, the condition of acquisition of the trademark rights, the scope of the space of the trademark rights, certainty of rights and so on.The second part is the position and function of "use" and "register" which exist in acquisition of trademark rights of the two countries. At the aspect of "use", this article sets out from the development of use in each country, and introduces the definition of use and other requirement. Thus, comparing the use in the two countries, based on two aspects of position and function. At the aspect of "register", the writer introduces the principal register and auxiliary register of America, and the requirement of register of China. Thus, the writer based on the position and function compares the "register" in each country.The third part is the comparison of illegal acquisition under different systems.After the introduction of the definition and present situation of trademark trolls in America and China, the writer concludes the definition of trademark trolls, and point out that this article discusses about the limited unregistered trademarks.Then introduces the system of prevent trademark trolls in America and China. This article introduces the limitations of American trademark trolls in trademark law and other aspects. The limitations in trademark law are the requirement of use, opposition and cancellation process, well-known trademark dilution protection and the clause of anti unfair competition. For the limitations of Chinese trademark trolls, this article introduces from trademark law and anti unfair competition law.The last part is about advises to make the system of acquisition through registration in China better. Firstly, this article individually evaluates the system of keeping from the scramble for registering trademarks in America and China, especially analyzes advantages and disadvantages of the system of intent to use and the register of China. Then on the premise of insisting on the principle of registration, the writer suggests to add a role of "intend to use" From the two aspects of the influence of "intend use" for China and the its apply to prove the necessity and the feasibility of introducing of the system of "intend to use", concluding the answer that our country must introduce the system of "intend to use",but should step by step.