1. WTO accession and the improvement of my country’s trademark legal system
my country’s WTO accession negotiations have begun this year Entering the final critical stage and joining the World Trade Organization, we must abide by relevant legal provisions and fulfill corresponding obligations. TRIPS is one of the agreements that members of the World Trade Organization must abide by and implement. On the whole, TRIPS can be said to be an international convention covering a wide range of contents, high level of protection, strong protection and strong restrictive force in the protection of intellectual property rights worldwide. As my country's accession to the WTO accelerates, it will inevitably have an important impact on my country's intellectual property legislation, justice, and law enforcement before and after its accession to the WTO. Therefore, it is necessary to understand its basic requirements and the gap between my country's existing trademark protection system and my country's enterprises to better protect and use their trademarks after joining the WTO.
Like other international intellectual property conventions, the substantive content of TRIPS is divided into three categories: first, basic principles; second, minimum requirements; and third, general requirements. The first two categories are what all members must comply with or achieve, while members of the third category can choose to apply them. The establishment of my country's trademark protection system should be said to have a good reputation. Since the birth of my country's first intellectual property law, the Trademark Law, in 1982, my country's trademark registration and management has achieved remarkable results in less than 20 years. By the end of 1999, my country's number of valid trademark registrations ranked among the top 10 in the world. , marking that my country’s trademark development has entered a new historical period. At the same time, my country has gradually established a relatively complete trademark legal protection system because it is good at learning from the useful experience of trademark laws in various countries, constantly revising and improving my country's trademark legislation and enforcement, and standardizing trademark legal behaviors. However, compared with the basic principles and minimum standards of TRIPS, In terms of requirements, there are still certain gaps in my country's trademark legal system. We need to carefully examine the existing laws and further improve our country's trademark protection system in accordance with the requirements of TRIPS to shorten the gap between existing laws and the agreement.the gap between.
my country's Trademark Law was promulgated in 1982 and revised in 1993. In order to cooperate with the implementation of the Trademark Law, the State Council and the State Administration for Industry and Commerce have also formulated a series of administrative regulations and rules. However, compared with the requirements of TRIPS, the Trademark Law should also improve the following provisions: (1) Directly incorporate the protection of well-known trademarks into the Trademark Law. At present, the "Interim Provisions on the Recognition and Management of Well-known Trademarks" promulgated and implemented by the State Administration for Industry and Commerce are only departmental regulations and their effectiveness is limited. (2) Increase judicial review of the final administrative confirmation of trademark rights. In my country, the final right to confirm trademark rights lies with the Trademark Review and Adjudication Board, and there is no judicial review and supervision required by TRIPS. (3) Clearly provide for the protection of geographical indications. At present, there are only some provisions in the interpretation of the "Registration and Management Measures for Collective Trademarks and Certification Marks", which are far from the requirements of TRIPS. (4) Add provisions on priority. In addition, damage compensation measures should be strengthened, temporary protection of exhibitions should be increased, etc. In short, we must revise existing laws as soon as possible and speed up the formulation of new laws to narrow the gap with TRIPS.
2. Problems existing in trademark protection of Chinese enterprises
my country The intellectual property legal system has been established for a short period of time, and the awareness of intellectual property protection in society, especially enterprises, is weak, and the protection of intellectual property rights in enterprises has not received due attention. With the development of my country's socialist market economy, especially the challenge of joining the WTO, This potential crisis has become a serious reality that we must face up to.
In the field of trademarks, many companies only focus on profits and are busy with production and business activities all day long. Only when the goods or services they produce or operate become popular do they realize that they are struggling. The brand that you worked so hard to create has been registered by others first. Although this can be remedied through legal means such as filing for improper registration, it consumes a lot of energy from the company and sometimes even becomes a key link affecting the company's important market operations. For example, the “China Unicom” trademark case that I represented is a good illustration. The "China Unicom" trademark was registered by others. At that time, China Unicom's overseas listing was also intensifying. Therefore, whether it could regain the ownership of the "Unicom" trademark before going public became a very important link in its listing process. Of course, in the end our firm successfully completed this agency business. Similarly, when our country's famous brand companies enter the international market, they find that their trademarks have already been registered by foreign businessmen, forcing our country's companies to either buy them back or change their names with huge sums of money when entering these countries or regions, and pay a high price to re-establish their reputation. price. This kind of experience of being squatted has reappeared in Internet domain name registrations, such as Tongrentang, Quanjude, Hongtashan, etc., have all been registered by others. Then there are many well-known brands in my country in joint venturesIf you don't pay attention to protecting your existing intellectual property rights, you will either end up in the sunset or be relegated to the "outcast". The most famous example is undoubtedly the "Maximum" trademark. After being put into a joint venture at a discount of 12 million yuan, this once well-known name was relegated to the sidelines and replaced by "Lumei SC Johnson". Although the manufacturer later realized the value of its old trademark and bought back "Maximum", it paid a huge price. In addition, some well-known trademark owners abuse their trademark licensing rights and do not supervise the quality of the goods or services provided by the licensees, causing the reputation of their trademarks to gradually decline.
Faced with the basic requirements of TRIPS, we urgently need to reverse the above-mentioned unfavorable situation and clear the way to the WTO.
3. Trademark protection strategies that enterprises should adopt when entering the WTO
From the above-mentioned unfavorable situation, we can also see the other side, that is, how developed countries fully utilize their trademark strategies when entering the Chinese market. Chinese enterprises should actively learn from the above-mentioned lessons of insufficient trademark protection, learn from successful foreign experiences, and combine their own actual conditions to formulate effective and effective trademark protection strategies, so that trademark strategies can become a useful weapon for enterprises to expand markets. In the era of knowledge economy, the competition among enterprises is largely the competition of intellectual property rights. Therefore, strengthening the awareness of intellectual property rights and improving the level of intellectual property protection are not only the requirements of the WTO, but also the inevitable requirements of the knowledge economy. Based on the cases we have encountered in our business, it is recommended that enterprises formulate their own trademark protection strategies from three aspects: confirmation of rights, protection of rights and use of rights.
Confirmation of rights is the first step in implementing intellectual property protection. Until the law determines your rights, no protection is possible. Therefore, enterprises should formulate corresponding brand strategies in institutional innovation. Register your trademark before investing in advertising to avoid using it as a wedding dress for others. When registering a trademark, the types and items of registered goods or services should be carefully considered, that is, to meet market demand to the greatest extent without causing idleness and waste of trademark assets. In short, you should determine your application comprehensively, timely and economically in accordance with the law and strive to obtain your own intellectual property rights, rather than leaving others behind.
Rights protection refers to how to protect one's legitimate rights and interests after obtaining them so that they will not be infringed or lost. First of all, in order for the acquired rights to continue to be valid, corresponding obligations must be fulfilled. For example, the use of the trademark must comply with the provisions of the law, otherwise it will be revoked according to law; the trademark is valid for 10 years, and it can be extended 6 months before expiration or after Renewal is required within the period. Secondly, rights holders should stop others' infringement in production and business activities in accordance with the law, safeguard their legitimate rights and interests, and have the right to obtain compensation in accordance with the law.
Using rights is the purpose of establishing an intellectual property system, and intellectual property trade can be said to be a concentrated expression of the use of intellectual property. Enterprises can make full use of the acquired intellectual property rights in market-oriented operations to obtain maximum benefits. For example, the trademark owner can obtain a certain amount of income through the transfer and licensing of the trademark; the trademark owner can also use the trademark right as a price to invest in shares; the trademark right can also be pledged as a pledge, etc. During production and operation, enterprises should also pay attention to whether the other party's intellectual property rights are legal and valid, and should not pay unjust transfer or licensing fees.
In short, as long as we truly establish awareness of intellectual property rights, use intellectual property rights everywhere in the production and operation activities of the enterprise, and increase the intensity of protecting intellectual property rights, then we We can turn disadvantages into advantages and survive and develop in the international and networked economic competition. As a large-scale state-owned professional intellectual property agency, we are willing to rely on our many years of experience to contribute to the intellectual property protection of Chinese enterprises in the new century and face the opportunities of joining the WTO together with enterprises. and challenges to jointly promote the development of my country’s intellectual property undertakings in the new century.
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