1, registration principle
Registration is a process of confirming the ownership of the exclusive right to use a trademark. There are two basic principles adopted by trademark laws around the world to confirm the exclusive right to use a trademark, one is the principle of registration, and the other is the principle of use. The so-called registration principle is to obtain the exclusive right to use a trademark through registration. No matter whether the trademark is used or not, as long as it conforms to the provisions of the Trademark Law and is approved and registered by the trademark authority, the applicant has obtained the exclusive right to use the trademark and is protected by law. The principle of use means that a trademark can generate rights through use. According to this principle, the first user can obtain the exclusive right to use a trademark. Article 3 of China's Trademark Law stipulates: "A trademark approved and registered by the Trademark Office is a registered trademark, and the trademark registrant enjoys the exclusive right to use the trademark and is protected by law." Therefore, China's trademark law adopts the principle of registration.
2. The principle of applying first
The principle of prior application is one of the important procedural principles derived from the principle of registration. Because the exclusive right to use a trademark is based on registration, it is not always a person who applies for registration with the same or similar trademark on the same kind of goods or similar goods, so it is an effective method to determine who owns the exclusive right to use a trademark according to the time when the application is submitted. Therefore, Article 18 of the Trademark Law stipulates: "Where two or more applicants apply for registration with the same or similar trademarks on the same commodity or similar commodities, the trademark of the earlier application shall be preliminarily examined and approved and announced". This is the principle of first application. According to this principle, even if a trademark has been used for many years, if you don't apply for registration in time, you will lose the opportunity to register because others apply first, and you won't get the exclusive right to use the trademark. Of course, the principle of applying first is also invalid. When two or more trademarks apply for registration on the same day, the ownership of the exclusive right must be determined by other methods. Therefore, Article 18 also stipulates that "if an application is filed on the same day, the previous trademark shall be preliminarily examined and announced, and the application of others shall be rejected without announcement." This shows that under the premise of giving priority to application, we also take priority to use as an appropriate supplement.
3, the principle of good faith
The principle of good faith is a basic principle in the field of civil law, and its legal manifestation is stipulated in Article 4 of the General Principles of Civil Law: "Civil activities should follow the principle of good faith." The principle of good faith requires that civil subjects should maintain the balance of interests between the parties and the balance of interests between the parties and the society in civil activities. In the interest relationship between the parties, the principle of good faith requires respecting the interests of others and treating other people's affairs as their own affairs, so as to ensure that all parties in the legal relationship can get their due interests without harming others' interests. When the interests of all parties are unbalanced under special circumstances, adjustments should be made to restore the balance of interests, thus maintaining a certain social and economic order. In the interest relationship between the parties and society, the principle of good faith requires that the parties should not harm the interests of the third party and society through their own civil activities, and must exercise their rights within the scope of legal rights in a way consistent with their social and economic purposes.
4. The principle of voluntary registration
The so-called "voluntary registration principle" means that the trademark registration used by enterprises is completely decided by enterprises. Article 4 of the Trademark Law stipulates that enterprises, institutions and individual industrial and commercial households that need to obtain the exclusive right to use a trademark for the goods or services they produce, manufacture, process, select and distribute shall apply to the Trademark Office for the registration of a commodity trademark or a service trademark. If an enterprise does not need or intends to obtain the exclusive right to use a trademark for the time being, it may not be registered. Registered trademarks are allowed to be used, but users have no exclusive rights and cannot prohibit others from using them.
5. The principle of centralized registration and hierarchical management
Centralized registration and hierarchical management are one of the outstanding features of China's trademark legal system. According to the characteristics of market economy and trademark itself, trademark registration should break the state of division of departments and regions, and the Trademark Office is responsible for the examination and approval of trademark registration. To this end, Article 2 of the Trademark Law stipulates: "The Trademark Office of the State Administration for Industry and Commerce is in charge of trademark registration and management throughout the country." This determines that the national trademark registration is the responsibility of the Trademark Office of the State Administration for Industry and Commerce, and no other organization has the right to handle trademark registration, which clarifies the principle of centralized registration. Classified management refers to the management of local trademarks by industrial and commercial administrations at all levels according to law. The implementation of hierarchical management is conducive to the close combination of trademark management and local reality, making trademark management regular and institutionalized.
6, the principle of administrative protection and judicial protection in parallel
This is another prominent feature of China's trademark legal system. The Trademark Law stipulates that the infringed may choose to have trademark infringement handled by the administrative department for industry and commerce or bring a lawsuit to the people's court. If the infringed party complains to the administrative department for industry and commerce, the administrative department for industry and commerce may, according to the valid evidence provided by the infringed party or the evidence obtained through self-investigation, order the infringer to stop the infringement immediately, compensate the infringed party for its losses, and may also impose a fine. If a party refuses to accept the punishment decision made by the administrative department for industry and commerce, he may bring a lawsuit to the people's court. The principle of concurrent protection provides convenience for the parties to solve trademark disputes and is conducive to protecting the exclusive right to use trademarks.
What is the significance of establishing a trademark law?
1. The applicable international registration of trademarks is limited, and the adjustment targets are clearly the international registration of trademarks with China as the country of origin, the application for territorial extension of China and other related applications.
2. The qualification of the applicant for international registration of trademarks with China as the country of origin is defined. The conditions and basic procedures for the application for international registration of trademarks and subsequent applications mainly involve the application of international treaties.
3. The procedure for examining applications for territorial extension of designated China is stipulated. Where a three-dimensional mark, a color combination and a sound mark need to be protected as a trademark or a collective trademark or a certification trademark, relevant materials shall be submitted to the Trademark Office through a legally established trademark agency within 3 months from the date of registration of the trademark in the International Register of the International Bureau. If the relevant materials are not submitted within the prescribed time limit, the Trademark Office will reject its application for territorial extension.
4. The procedure for objecting to the application for designating the territorial extension of China is stipulated. Because the Trademark Office does not publish the examination conclusion after examining the application for the extension of the designated territory of China ex officio, the time for raising objections to internationally registered trademarks is also different from the provisions of Article 33 of the revised Trademark Law. An objector who meets the conditions stipulated in Article 33 of the Trademark Law may file an objection with the Trademark Office within three months from the first day of the month following the publication of the international trademark announcement of the World Intellectual Property Organization.
5. It stipulates the follow-up procedures related to the application for territorial extension of China, including renewal, transfer and deletion, mainly involving the convergence of domestic laws and international treaties. The term of validity of an internationally registered trademark protected in China shall be counted from the date of international registration or the date specified later. Before the expiration of the validity period, the registrant may apply to the International Bureau for renewal. If no application for renewal is made within the validity period, a grace period of 6 months can be given. When transferring an internationally registered trademark, the transferee shall abide by the provisions of international treaties, and at the same time, according to the provisions of the Trademark Law, the transferor shall transfer the same or similar trademarks on the same or similar goods or services together. The provisions on the application for deletion mainly involve the requirements that the scope of the deleted goods or services should meet.
6. In view of the differences between Madrid system and Trademark Law in system design and specific provisions of international registered trademarks, the Trademark Law and the Regulations for the Implementation of the Trademark Law can be excluded. The application for territorial extension of designated China does not apply to the review period of domestic application for registered trademarks, nor does it apply to the provisions of commodity division. For an internationally registered trademark that has been challenged, the Trademark Office shall not apply the provisions of the Trademark Law on the time limit for hearing objections. When a trademark registrant changes the name or address of the registrant, it shall change all its registered trademarks, and the provisions that the assignor and the assignee shall jointly apply for and handle the trademark transfer procedures shall not apply to the international registration change and transfer of trademarks.