How to obtain 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 or she 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 principle
Registration principle is to use trademark registration as the basis for obtaining trademark rights. condition. 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, because 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, which avoidsIt eliminates the situation where trademarks are in an unstable state for a long time and facilitates 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. This is especially true when the prior user's trademark 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. Mixing principle
The hybrid principle, that is, the compromise principle, means that when determining the establishment of trademark rights, both use and registration are taken into consideration. Trademark rights can arise from registration or use. And established.
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 ; The trademark registrant enjoys the exclusive right to use the trademark and is 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.
Trademark registration needs to follow the following principles
1. Voluntary The principle of combining registration and compulsory registration. Most trademarks in my country adopt the principle of voluntary registration. Producers and operators of goods that require the use of registered trademarks under national laws and administrative regulations (mainly cigarettes, cigars, and packaged cut tobacco) must apply for trademark registration. Without approved registration, the goods shall not be sold in the market.
2. Principle of prominence. The trademark applied for registration should have distinctive features and be easy to identify, and should not conflict with other people's previously acquired legal rights (such as design patent rights, name rights, and copyrights).
3. Principle of trademark legality. The trademark applied for registration shall not use signs prohibited by law. Registered trademarks using place names will continue to be valid. Without authorization, an agent or representative will be represented in his or her own name.If the trademark of the agent or represented person is registered, and the agent or represented person raises an objection, the registration will not be granted and its use will be prohibited. If a trademark contains a geographical indication of a commodity, but the trademark does not originate from the region indicated by the trademark and misleads the public, it will not be registered and its use will be prohibited; however, registration that has been obtained in good faith will continue to be valid.
4. When reviewing and announcing trademark registration applications, adhere to the principle of first-to-file and first-to-use. If two or more trademark registration applicants apply for registration of the same or similar trademark on the same or similar goods, the trademark that was applied for first will be preliminarily reviewed and announced; if the application is made on the same day, the trademark that was applied for first will be preliminarily reviewed and announced. If you use an earlier trademark, other people’s applications will be rejected and no announcement will be made.
5. The principle of prohibiting trademark squatting. When applying for trademark registration, you must not use unfair means to preemptively register a trademark that is already used by others and has certain influence.
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.