Generally speaking, all countries in the world adopt the following three ways to obtain the original trademark right: (1) registration, that is, the trademark owner obtains the trademark right through registration. Accordingly, a trademark user can only obtain the exclusive right to use a trademark after applying for registration, and even an unused trademark can apply for registration. (2) the principle of use, that is, the trademark right is obtained by using the trademark. Accordingly, as long as the trademark is used for a certain period of time, even if it is not registered, the exclusive right to use the trademark can be obtained. Some countries that use the method also apply for trademark registration, but the premise is whether the trademark is actually used. The registration of a trademark is only the enhancement of the exclusive right to use a trademark, and it does not involve the ownership of rights. (3) the principle of mixing. There are two roads here. First, the trademark right can only be obtained by applying for registration, but within a certain period after the registration is approved, the first user is given the opportunity to revoke the registered trademark that is the same as or similar to the trademark he used for the first time on the grounds of prior use; Second, while confirming the exclusive right to use a trademark, the prior user is allowed to continue to use it within the original scope, but the user is not allowed to license others to use its trademark, and can only use it himself or transfer it with the enterprise.
Legal objectivity:
The acquisition of trademark right means that a specific person (including natural person and legal person) applies for its trademark according to law and is approved and registered by the Trademark Office, that is, the trademark right is obtained. The acquisition of trademark right refers to the legal relationship of trademark right. As intangible property rights and tangible property rights, their acquisition methods can be divided into original acquisition and inheritance (also called inheritance) acquisition according to different sources. The main difference between these two acquisition methods lies in whether the acquisition of trademark right is based on the trademark right and will of the original trademark owner. First, the original acquisition of the original acquisition is also called direct acquisition, that is, based on legal provisions, with legal conditions and approved by the trademark authority to directly obtain the trademark right. The acquisition of this right is initial, not based on the trademark rod of the original trademark owner and his will. At present, the original acquisition of trademark rights in various countries usually adopts the following three principles: (1) use principle. According to the order of trademark use, the ownership of trademark rights is determined, that is, whoever uses the trademark first belongs to the trademark right, and the person who objects to the use after the use on the grounds of "first use" may request the cancellation of his registered trademark. Using this principle to confirm the acquisition of trademark rights is beneficial to the first user and unfavorable to the owner of the registered trademark used later. This practice will make the registered trademark unstable for a long time, which is not only unfavorable to trademark management, but also difficult to find out who is the first user once a dispute occurs, which is not conducive to the handling of disputes. Therefore, at present, few countries in the world adopt this principle of acquisition. (2) the principle of registration. Determine the ownership of trademark rights according to the order of application for registration, that is, whoever applies for registration first will be granted the trademark rights. According to this principle, only the trademark registered by the Trademark Office and the trademark applicant can obtain the trademark right. Trademark registration is a legal fact. Once the trademark owner obtains the trademark right through registration, it is protected by national laws, and unregistered trademarks are not protected by law. According to this principle, if the first user of a trademark does not apply for registration in time, but is registered first by others, then it is impossible to be registered first by others without applying for registration in time, and it is impossible to obtain the trademark right of the trademark used. There is a small county-level winery in Tangshan City, Hebei Province. After careful design, it produced a "giant" trademark. After the use of the "Giant" trademark, it has attracted the attention of all walks of life, and the reputation of the company has been greatly improved, creating high economic value. At this time, a small white winery in the suburbs of Beijing registered the trademark of "Giants", which caused serious losses to the interests of Tangshan "Giants" winery. Later, it had to spend huge sums of money to buy the registered trademark of "Giant". Adopting the principle of trademark registration is not conducive to enhancing the trademark awareness of enterprises and urging them to apply for trademark registration in time, which is not conducive to trademark management. Therefore, most countries, including China, adopt the principle of trademark registration. Using the principle of registration to determine the ownership of trademark rights does not rule out the significance of the principle of use under certain conditions. Article 18 of China's Trademark Law stipulates: "If two or more applicants apply for registration with the same or similar trademarks on the same trademark or similar goods, the trademark applied earlier shall be preliminarily examined and announced; If the application is made on the same day, the prior trademark will be preliminarily examined and announced, and the application of others will not be announced and rejected. " This law embodies the principle of use under certain conditions. (3) the principle of mixing. This is a compromise between the use principle and the registration principle. According to this principle, as long as the enterprise or individual uses the trademark first, although it is not registered, it can oppose the same or similar registered trademark of others on the grounds of prior use within the prescribed time limit. If this confrontation is established, the registered trademark will be revoked. If the confrontation cannot be established, the trademark registrant has obtained an irrefutable and stable exclusive right to use the trademark. Some countries adopt this principle. For example, the United States, Britain, Spain and other countries all stipulate this, but the time limit is different. It is seven years in Britain, five years in America and three years in Spain. Second, the mistresses' acquisition, also known as inheritance, means that the acquisition of trademark rights is not initially produced, but based on the trademark rights of the original trademark owners and their will, and now the trademark rights are transferred through certain legal facts. There are two ways to obtain trademark rights: one is to obtain trademark rights from the transferor with or without compensation according to the transfer contract; The second way is the trademark right obtained by the decedent whose legal heir has died in accordance with the inheritance procedure.