The Influence Of TRIPS On Trademark Law Amendment

The protection level of trademark is an important embodiment to measure a country's intellectual property development, and a reliable security guarantee of the market economy development. The Agreement on Trade-Related Aspects of Intellectual Property Rights, hereinafter short for " TRIPS Agreement", is a milestone in the internationalization of intellectual property rights protection system, and its regulations about protection of intellectual property rights has a significant impact on our trademark legislation. In order to make legal protection of trademark law of our country consistent with the TRIPS agreement, it had been revised for three times since 1982. This article mainly makes the research direction as the influence of TRIPS on trademark amendment of three times, as well as its background, motivation, progress and imperfections, meanwhile, further explores the future development direction and the trend of the trademark law, and put forward my suggestions and countermeasures for enhancing the trademark legal system of our country, reaching to the standard of the TRIPS agreement. The article is divided into five parts to discuss related issues.The first chapter mainly analyzes the development of the trademark law in our country, by reviewing the origin, the background, process and difficult of trademark to understand the construction of legal system of current trademark law, meanwhile, analyzes the current background of internationalization of intellectual property rights, to know the implementation status, development direction and revision of significance of the trademark law in China.The second chapter mainly analyzes the first amendment of trademark law under the influence of the TRIPS agreement, by having a brief understanding about the relevant content of the TRIPS agreement and the implementation of Chinese trademark law amendment background, amended contents, progresses and places need to be improved. After the third plenary session of the economic development, China is in a beginning stage of economic development, after the same time, with the development of international trade activities, the internationalization market trend is more and more obvious, and China joined into the Paris Convention on the Protection of Industrial Property and the Madrid Agreement Concerning the International Registration of Marks respectively in 1985 and 1989. In 1986, China participated in the eighth round of negotiations of GATT, as developing country representatives, and discussed the drafting, negotiation, formulation of the TRIPS agreement with other developed countries too. Due to the imperfect system, in the late 80s, the United States provoked our trademark legal system many times, by the time, the disputes causing by trademark infringement in our country is becoming more and more frequent. So, under various pressures, the first trademark law amendment began to be revised, and its main contents contained that increased service trademark protection, strengthened the trademark licensing regulations, and perfected the trademark protection and so on. The perfection of the first amendment of trademark law, hit the malicious tort to a certain extent, curbed the abuse of trademarks in market. This amendment, however, hasn't provide the protection about the vital interests of the public problem, such as, the natural person wasn't included in the application registration trademark, the well-known trademark special protection hasn't stipulated and the infringement of trademark wasn't reasonable and so on.The third chapter mainly analyzes the second amendment of trademark law under the influence of the TRIPS agreement in our country, by analyzing the activities of trademark legislation of our country, after the signature of TRIPS agreement, to know the second leap of our trademark legal system building progress at that time. To follow the WTO's multilateral trade agreements, and meet the minimum standards of the TRIPS agreement, China had to start the second revision of the trademark law. Its highlight content is to expand the subject of the application of trademark registration, make the natural person as the trademark registration applicant, increase the protection of collective trademarks, certification trademarks and geographical trademark, increase the priority protection of trademark right, and increase the well-known trademark protection, etc. The second trademark amendment is impacted deeply by the TRIPS agreement, meanwhile the legal protection of the trademark law system in our county has preliminary established, and the market sequence has been further standardized. However, some problems still insist, such as no limitations on the trademark rights and no regulations on the commercial appearance, and so on.The fourth chapter mainly analyzes the third amendment of Chinese trademark law under the influence of TRIPS agreement. It costs 10 years to revise the Trademark law from starting to the final published, which initiative revises by China itself, and the gap between the second amendment of trademark law with TRIPS agreement has been narrowed, through the third trademark law amendment. The three amendment further perfected the traditional trademark, prior trademark rights and the use of trademark. At the same time, the time is more reasonable for Trademark Appraisal Committee when they deal with the cases. In addition, the contents, prohibiting the propaganda of well-known trademark, increasing the prohibitive provisions of the trademark agencies, perfecting opposition procedure of trademark and so on, which is revising initiative by the third trademark amendment, are the answer that narrows the gap with TRIPS agreement and solves the controversial issues of trademark in the market economy.The fifth chapter mainly analyzes the gap between Chinese trademark law and the TRIPS agreement by comparation, and puts forward my suggestions and countermeasures according to actual situation. With the development of globalization and integration of international trade, countries are aware of the importance of trademark protection, and constantly perfect their own trademark legislation. Although it has been revised for three times and the protection system of trademark law has preliminarily established, the trademark law still insist many questions that the scope of trademark registrations is too narrow, the fair use of trademark isn't stipulated, geographical indication protection isn't up to the TRIPS agreement standards and so on. Therefore, by summarizing the development trend and deep motivation of the three amendment of trademark law, the author puts forward some suggestions and countermeasures to solve the problems still existing on current trademark law, and hopes that it will be helpful for perfecting the trademark law system.