On Vicious Preemptive Registration And Protection Rules Of Trademarks' Popular Names

In recent years,disputes over “trademarks' popular names” have become a new case type in China's judicial practice.Due to the rapid development of market economy at present,the competition among companies is more and more fierce.Trademarks,that carry business reputation and identify the sources of goods and services,have demonstrated tremendous value of property and played an important role for enterprise operators.As a result,phenomenon of vicious preemptive registration frequently appears.At the very beginning,what dishonest operators viciously registered are others' unregistered trademarks.Later on,the behavior patterns of vicious preemptive registration become increasingly diverse,such as registering names of others' corporates,famous people,and place of interests,etc.It becomes even common regard to vicious preemptive registration of trademarks' popular names,such as Sony Ericsson Case,Viagra Case,Land Rover Case and Guang Yun Gong Bing Case.Due to different judgments among courts,it creates a dilemma in judicial practice.Also,it remains controversial in academic circles on the vicious preemptive registration of trademarks' popular names and their protection rules.Therefore,researches on trademarks' popular names are still in the initial stage.In view of this,the author carried out a research on the malicious preemptive registration of trademarks' popular names and the protection rules of trademarks' popular names.Starting with the connotations and characteristics of trademarks' popular names,coupled with clauses related to malicious preemptive registration of trademarks in Trademark Act,the author analyzed the behavior of malicious preemptive registration of trademarks' popular names,pointed out existing deficiencies in protection measures in China and dissected the development of “public use rule” in America,with a view to seeking for reference.Then the most controversial issue in protection of trademarks' popular names—the theory of trademark passive use was introduced,with the hope of using trademark passive use theory to protect the advantages of trademarks' popular names.Lastly,protection rules to cope with malicious preemptive registration of trademarks' popular names were formulated,hoping to offer some practical regulatory suggestions on maintaining fair market order.This thesis is composed of four parts.In the first part,basic theories of trademarks' popular names and malicious preemptive registration were introduced.First of all,based on the connotations and concepts of trademark,trademarks' popular names were classified and several major characteristics of trademarks' popular names were summarized.Then according to clauses about malicious preemptive registration of trademarks in Trademark Act,the identification of malicious preemptive registration behaviors was analyzed.Next the patterns of malicious preemptive registration of trademarks' popular names and the necessity of prevention and control of such behaviors were elaborated.The second part is about dilemma of existing protection measures to trademarks' popular names and the comparison between domestic and foreign protection rules.In this part,the author respectively analyzed existing protection means of trademarks' popular names in China and their limitations including protection of unregistered trademarks,similar to the prior registered trademarks,clauses with negative influences,limited protection of Law against Unfair Competition,etc.Then the author sorted out the formation and development process of public use rule in America and evaluated juridical practice on trademarks' popular names in America,analyzed the differences in judicial bases between China and foreign countries and lastly,made a comparison between American public use rule and China's objective connection rule.In the third part,the author admitted the importance of passive use of trademarks to the protection of trademarks' popular names.Through three typical cases,the author introduced passive use theory of trademarks and analyzed the academic views and theoretical bases of trademark passive use theory and trademark active use theory,so as to explore into the advantages and disadvantages of using trademark passive use theory to solve the problem of vicious preemptive registration of trademarks' popular names.In the fourth part,the author put forward personal conception and enlightenment of legal protection rules for vicious preemptive registration of trademarks' popular names and listed several basic principles that the protection of trademarks' popular names should follow.Then the author tried to use trademark passive use theory to solve cases of vicious preemptive registration of trademarks' popular names,sought for protection rules and means,and lastly proposed specific suggestions on enhancing beforehand prevention consciousness of the protection of trademarks' popular names from the standpoint of owner of the original trademark.