How to obtain trademark rights
The acquisition of trademark rights means that a specific person (including natural persons and legal persons) applies for a trademark in accordance with the law and has it approved and registered by the Trademark Office. Obtain trademark rights. The acquisition of trademark rights is the creation of legal relationships with trademark rights. As intangible property rights are the same as tangible property rights, their acquisition methods can be divided into original acquisition and transmission (also known as inheritance) acquisition according to their different sources. The main difference between these two acquisition methods is whether the acquisition of trademark rights is based on the trademark rights and will of the original trademark owner.
1. Original acquisition Original acquisition is also called direct acquisition, that is, the trademark right is obtained directly based on legal provisions, meets the legal conditions and is approved by the trademark authority. . This kind of right is acquired initially and is not based on the trademark rights and will of the original trademark owner. Currently, the following three principles are usually adopted for the original acquisition of trademark rights in various countries:
(1) Principle of use. The ownership of trademark rights is determined based on the order of use of the trademark, that is, whoever uses the trademark first will own the trademark rights of this trademark, and can fight against the person who used the trademark later on the grounds of "first use" and request the cancellation of their registered trademark. . Adopting this principle confirms that the acquisition of trademark rights is beneficial to the person who uses it first, but is not beneficial to the owner of the registered trademark who uses it later. This approach will make the registered trademark unstable for a long time, which is not only detrimental to trademark management, but also difficult to find out who was the first user once a dispute occurs, which is not conducive to the settlement of disputes. Therefore, there are currently very few countries in the world that adopt this acquisition principle.
(2) Registration principles. The ownership of trademark rights is determined based on the order of application for registration, that is, whoever applies for registration first will be granted the trademark right. According to this principle, only if the trademark is approved and registered by the Trademark Office, the applicant of the trademark can obtain trademark rights. Trademark registration is a legal fact. Once a trademark owner obtains trademark rights through registration, it is protected by national law andUnregistered trademarks are not protected by law. According to this principle, if the first person to use a trademark does not apply for registration in time and is preempted by others to register it, he or she will not be able to sue the already used trademark. Obtain trademark rights.
(3) Mixing principle. This is a compromise between the use principle and the registration principle. According to this principle, as long as an enterprise or a person first uses a certain trademark, even if it is not registered, it can fight against the same or similar registered trademark of others on the grounds of prior use within the specified period
2. Acquisition through transmission, also known as inheritance, that is, the trademark right is not acquired initially, but based on the trademark rights of the original trademark owner and its Based on the will, the transfer of trademark rights can be achieved through certain legal matters.
There are two ways to obtain the trademark right: one is according to the transfer contract, the transferee obtains the trademark right from the transferor with or without compensation; The method is to transfer the trademark rights of the decedent who has died to the legal heir according to the inheritance procedure. The acquisition of trademark rights, whether acquired or inherited, should strictly follow the procedures prescribed by law.
The above are the editor’s answers to relevant questions. If you need to know more about legal knowledge, you are welcome to enter the Legal Savior Network for legal consultation.
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