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What we obtain the trademark right?-- Acquisition of trademark right middle road model

Author: DengHongGuang From: www.yourpaper.net Posted: 2010-06-24 14:45:08 Read:
Keywords: trademark / registered / use / "made using registered"
Abstract: trademark registration mode has become the mainstream trend, it replaces the trademark use mode is inevitable, because it is more conducive to the operator and the protection of trademark right, more in line with the development of modern business, but also more in line with the trademark right in property.However, contrary to the traditional trademark registration mode in theory, in practice lead to "junk trademark" disaster caused by flooding water, is the result of China's trademark examination efficiency and trademark arch-criminal of chaos.China's "trademark law" in the third amendment, shall be registered and used to obtain absorption of the mode, and avoid the defects of the two kinds of mode, take "use registered" trademark right acquisition mode.
In our country, the registration is only one way to obtain the trademark right.[1] however, the acquisition of trademark right mode split the inner connection between trademark and goodwill in theory, and the theory of labor draw further apart, in practice lead to disaster caused by flooding water to register as a means to seize and occupy the Trademark Act, great waste of trademark and Trademark Review resources, is the result of China's trademark examination efficiency and trademark arch-criminal order chaos.In the forthcoming third revised trademark law of our country, it is necessary for us to re-examine the trademark right is obtained on the basis of analysis of trademark right acquisition mode, the advantages and disadvantages, take the essence, discard the dross, to design a more reasonable trademark right acquisition mode.


A trademark protection, trademark use to obtain reputation: theoretical basis of
mode
Trademark use mode in trademark law history occupied an important position, although it has been registered to replace, but the model and the traditional trademark theory come down in one continuous line, the traditional ownership theory.
Trademark use mode that is the only way to obtain the trademark right, the model is consistent with the traditional trademark theory foundation.According to traditional theory, the trademark is used to distinguish between different operators provided by the same or similar products or services to identify symbol, it is a symbol of the credibility of the [2] operator.Trademark by showing the commodity provider, to build a bridge of communication between operators and consumers: operators through the use of trademark to sell their products to consumers, consumers through the trademark to identify the different operators to provide goods.For consumers to choose a particular brand of product, not because of the trademark registration, but because of the trademark represents the quality level of products, the trademark has become a symbol of the trademark owner of commercial reputation, "trademark is his (trademark) stamp the most credible, trademark right through it to ensure the attachment of the trademark product, it delivers trademark right or good or bad reputation", "reputation like face, is a symbol of its owner and its reputation".The foundation of [3] trademark is that it represents the commercial reputation, trademark logo is only the external signs of goodwill, if there is no business reputation, symbol of pure not worthy of protection.Therefore the trademark rights only to protect their goodwill from the point of view, to stop others from using its trademark has reasonable basis.The United States Court stated this as the only, "continues to enjoy a good business reputation of the trademark and goodwill from the owner of the trademark, and other improper interference from this perspective, the trademark right is a right of property".[4] in addition, from the elements of trademark, which is composed of "text, graphics" (trademark of the signifier) and show that commercial sources or operator's reputation (trademark refers to a "double entity"), just as the water is composed of hydrogen and oxygen combine, the paper has two sides to form a sample, both can not be separated.[5] therefore, goodwill is an indispensable part of is the basis of trademark, trademark protection.However, the trademark represents goodwill will never out of thin air, only through long-term practice to gradually form.Therefore, in actual use to decide whether can obtain the trademark right, consistent with theories of the nature of trademark.
Trademark right is used to obtain the model is also consistent with the traditional ownership theory.People always think, work is the most important way to create wealth, the proper way is to obtain the ownership of property.Modern Philosophy Master Rock deeply analyzes the important significance of labor in the acquisition of property rights, the property is defined according to the nature and scope of the work and life needs, everyone needed in their life range can be as much as possible to obtain property by labor.God gives all things to us to enjoy, it must through some appropriated way, then can be beneficial to a person.Everyone who makes anything from its original natural state, he mixed his labour, which become their own to exclude others claim property.Each person's labor absolutely all for himself, then through labor to gain something it will become their possessions.[6] but God for our enjoyment of property to us, who can be in before a corruption use it to meet their own needs, who can be in the limits to his labor is obtained on the basis of their property; over the limit of he have no right to enjoy, because God created things for us enjoy rather than for people to spoil.God will give the human world, command human to work, who obey the call of God, who can obtain the blessing of god.[7] on trademark, all communication symbols are used for human beings, everyone must pass through the increased use of labor, to identify the goodwill to become his trademark.Any attempts to register and not through hard work to get to trademark exclusive use right, do not accord with public goods through labor is allocated to private rules.Those that only registered without the use of the trademark occupy behavior, it is Bo Tim tin mat behavior, completely contrary to the basic principles of not spoil items.
Using the obtained mode due to comply with the nature of trademark, in accordance with the theory of ownership has win support among the people, it is easier for the public to accept, also can be more effective to stimulate people's potential, give full play to the utility.In order to work for bounded property rights, "people are always more diligent, more consciously, and learn to love by their own hands and bear the fruits of labour."[8] hard-working and rational will reduce the waste of public welfare in the world, because the hard-working person creates a scarcity, the scarcity of lazy doubly hard work, to improve their situation.To the right of trademark, is used to obtain the model of advice to the people, to obtain the trademark rights only through sincerely to use the trademarks in the market, let the brand and become the representative of the trademark owner of goodwill by using, as a bridge to communicate the trademark holders and consumers.It also warned the world, don't try to take away by force or trickery by registration way go crooked ways, work with quiet hard application is the right way, which has good atmosphere conducive to honest business.


Two, collaborate from within with forces from outside: trademark registration Zhongxing Road
acquisition mode
Although the trademark is used to obtain the model accords with the traditional theory of trademark law, meet the workers enjoy the idea, simple justice work however, it is undeniable, registration mode has been recognized by many countries, Britain and the United States of America even as a trademark is used to obtain the typical pattern, is no exception.Here, I would like to Britain and the United States of America acquisition of trademark right reason of transformation model as an example, to analyze the relative advantage of registered mode.
Commercial trade is to give up behind American trademark use mode.With the development of international trade, economic links between countries more and more closely, mutual recognition and protection of intellectual property rights has become an inevitable trend.However, due to the different and most of the countries of the trademark use mode, foreign businessmen complained repeatedly, the level of protection in the same circumstances in England they were lower than their state of the protection level of English merchants.The British under foreign pressure, began to adopt the trademark registration system in 1875.Even so, trademark registration system initial still subject to fake action, that the registration system is a kind of Statutory Supplement fake theory of common law.[9] then Britain after a long time to complete conversion can be obtained for registered trademark.The United States has long insisted that only the use of trademarks can be registered in the business.Since the "Paris Convention" does not require the registration of a trademark to "use" as the premise, the United States of America in the accession to the Convention, had to provisions of foreigners to apply for federal trademark registration should not be bound by the trademark use conditions, which leads to discrimination and treatment situation of American foreign.In order to solve this problem, the United States of America correction "Lanham act" in 1988 to increase the "intention to use (intent to use)", as long as businesses have a sincere intention to use a trademark, it may apply for federal trademark registration, thus realized to register mode switched from using mode.
The British and American adoption registration basic reason why mode, lies in the relative advantages of this model.First of all, from the cost and benefit point of view, the registered mode is more favorable to the operator.The operator can register is protected in practical use, much lower cost.The trademark owners can actually use before the transfer of the trademark in the registered trademark, which can be detached from the goodwill and separate transfer, [10]
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