What are the systems for trademark protection
(1) The purpose of protection under the legal system that adopts the usage principle, The objects of protection and the nature of rights
Historically, different interest groups have made conflicting requests for trademark protection. Different answers to this question directly affect the determination of the objects of protection, and in turn affect the design of the legal system for trademark protection. The purpose of trademark protection is directly related to the purpose (or function of the trademark). Centuries ago, when medieval guild members identified who made the goods by affixing their guild emblems to the goods they sold, the purpose was to indicate the origin of the goods. This is the original function of a trademark. The early protection requirements were to prohibit competitors from using signs that are identical or similar to their own trademarks on a continuous basis and may deceive customers. The English Court of Chancery was the first to accept a request for an injunction against imitation, which prohibits confusion about the origin of goods. At this stage, case law protection of trademarks is achieved through passing off proceedings.
Trademarks and commercial activities in common law are inseparable . A "trademark" may exist only when it is associated with a certain commercial activity. The unfair competition essence of counterfeiting also explains why trademark rights can only be obtained through use. The common law regarding trademarks revolves around the principles of use that form its basic theoretical basis and matures over time as individual cases accumulate. itFrom the initial injunctive relief that only provided trademark users to prevent confusion about the source of goods, it has evolved to provide trademark users with an absolute right of relief similar to ownership rights. During this development process, the common law has always been based on the following proposition: the only thing that needs or deserves legal protection is the result of first use.
Common law on protected objects and trademark rights The understanding of nature is consistent with the theory that trademark protection arises from use. At the same time, different legal systems that adopt the usage principle have a "personalized" view on the above issues.
When the concept of property applies to signs in the field of trade At that time, the following theoretical issues arose: a trademark composed of ordinary words may have a strong source identification significance, but it is almost impossible to be legally classified as anyone's "property"; the concept of "property" is logically Incompatible with traditional rationales about deception. "Lawyers and courts quickly discovered that their original property theory didn't work. There was no such thing as the color of a label, the arrangement of typography, the shape of a bottle, or many other things that were used to identify a particular person's merchandise. Property that can be claimed." Therefore, there is another question before people, that is, what exactly is the protected object?
Consistent with the understanding of the object of protection, the rights enjoyed by trademark owners under common law (that is, the right to prohibit others from imitating) have specific connotations. As mentioned above, English courts have refused to treat rights arising from the use of a trade mark as a full property right. Unlike independent property rights in the complete sense, this right goes hand in hand with the owner's business (and the goodwill contained therein) and is only valid during the owner's business existence. Therefore, it cannot be transferred separately, but only together with the owner's business (and its goodwill). In the history of Anglo-American law, the concept that "the rights enjoyed by the trademark owner should be transferred together with the business attached to it" has been strictly adhered to. British jurisprudence shows that if this rule is breached, both the transferor and the transferee will be in danger: transferThe person will then lose his own interests, and the assignee will have no goodwill of his own to rely on to file a lawsuit. This common law rule is codified in the U.S. Federal Trademark Law: "A trademark that has been registered or has been applied for registration shall be identifiable in connection with the goodwill of the business in which the mark is used, or in connection with the use of the mark and by the use of the mark." The reputation of that part of the business represented by the trademark is transferred together with it."
At this point, we can outline the following logical relationship of trademark protection under common law: the rights enjoyed by the trademark owner are a limited property right that is inseparable from the owner's goodwill; what is protected is the trade reputation of the subject Or business reputation; business reputation is obtained through the use of trademarks; trademarks act as a tool or means.
(2) Legal systems that adopt the registration principle The purpose of protection, the objects of protection and the nature of rights under
The trademark legal systems of two types of countries with different backgrounds have adopted the registration principle: one type has a tradition of using the unfair competition principle in case law to protect trademark users, such as the United Kingdom and France; the other type lacks this countries that have traditional or only limited case law protection, such as developing countries and Meiji-era Japan and Germany.
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