What are the principles that should be observed in obtaining trademark rights
1. Principles of use
The principle of use means that the first user of a trademark has the right to obtain the exclusive right to use the trademark, regardless of whether he has gone through the trademark registration procedures. Countries that adopt this system regard registration as a statement rather than a basis for determining the ownership of trademark rights. The advantage of this principle is to protect the legitimate rights and interests of the prior users of the trademarks they use and prevent others from maliciously registering their previously used trademarks. The value of a trademark is obtained through use. Trademark users have to invest more or less money in using the trademark. Adopting the principle of use can enable trademark users to get reasonable returns for their efforts. The biggest disadvantage of this principle is that while it protects the prior use of a trademark, it ignores the protection of general trademark registrants, because it is difficult for general trademark registrants to know whether a certain trademark has been used by others. The first-to-use principle also brings difficulties to trademark management and the resolution of trademark disputes. There are currently very few countries in the world that adopt this approach.
2. Registration principles
Registration principles, that is, trademark registration as a condition for obtaining trademark rights. Under the registration principle, trademark registration is the only way to obtain original trademark rights. To obtain trademark rights, you must go through the legal process of trademark registration.
In terms of system structure, the registration principle is often combined with the first-to-file principle. That is to say, under the registration principle, if several people apply for registration of the same trademark, the trademark rights will be awarded to the earliest applicant. However, when several people apply for registration of the same trademark at the same time, the principle of use is adopted, and the trademark rights belong to the first user. When the registration principle is adopted, since the registration fact is very objective and easily recognized by people, this sets an easy-to-judge and clear standard for the management and protection of trademark rights, avoiding the situation where the trademark is in an unstable state for a long time. Facilitate the resolution of trademark disputes. This is the beauty of the registration principle. However, for the prior user of a trademark, if it fails to register the trademark in time, it may lose control of its trademark due to preemptive registration by others, which seems unfair. Especially atThis is especially true when the trademark of the prior user has already gained a certain degree of popularity. Generally speaking, the registration principle is adapted to the needs of social and economic development and the protection and management of trademarks, so it is adopted by most countries in the world.
3. Mixed principle
Mixed principle, that is, the principle of compromise, This means that when determining the establishment of a trademark right, both facts of use and registration are taken into consideration. Trademark rights can arise due to registration or use. The hybrid principle integrates the usage principle and the registration principle, and is the result of a compromise between the two. According to the hybrid principle, trademark rights in principle belong to the registrant of the trademark, but the previous user of the trademark can raise a dispute or accusation within a certain period specified by the law and request the cancellation of the registered trademark. If no one raises a dispute or accusation within the legal period, Allegations are made, and the trademark registrant obtains indisputable trademark rights. Under the mixed principle, trademark registration only plays a role in presuming the establishment of trademark rights at first, and only becomes the basis for establishing trademark rights after the expiration of the legal period; and trademark use does not establish trademark rights as under the use principle, but only makes the prior The user obtains the right to contest the registered trademark. It can be seen that the hybrid principle is not a simple addition of the use principle and the registration principle, but combines the strengths of both principles. However, although the hybrid principle takes into account the interests of the first registrant and the first user and maintains a balance between the interests of the two, it also brings considerable difficulties to the management and protection of trademarks. Therefore, countries in the world that adopt the hybrid principle Not too much. At present, some countries and regions such as the United Kingdom and the United States adopt this principle.
Article 3 of my country's Trademark Law stipulates: Trademarks approved and registered by the Trademark Office are registered trademarks, including commodity trademarks, service trademarks, collective trademarks, and certification trademarks; Trademark registrants enjoy exclusive rights to trademarks and are protected by law. It can be seen that our country adheres to the principle of obtaining trademark rights through registration, that is, only a registered trademark has the right to exclude others from using the same or similar trademark on the same or similar goods or services, and has the right to file lawsuits against infringement. The Trademark Law stipulates strict procedures for trademark registration, but at the same time, it also fully considers the interests of the prior users of the trademark. Article 31 of the Trademark Law makes corresponding provisions. Article 31 stipulates that if two or more trademark registration applicants apply for registration of the same or similar trademark on the same or similar goods on the same day, "preliminary examination and approval" Article 31 stipulates that when applying for trademark registration, “you shall not use unfair means to preemptively register a trademark that has been used by others and has certain influence.”
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