The construction of a trademark system should be based on the scientific and rational fundamental theories of trademark law which has multiple characters,including those of commercial law,competition law and intellectual property(IP)law.While a trademark comprises three essential elements,i.e.,trade,mark,and goodwill,the object of trademark rights should be trademarks that process goodwill.Based on the business ethics and corresponding to the three essential elements of a trademark and the dual objects of trademark rights,operators can only have goodwill and obtain substantive trademark rights by using a trademark in trade,while registration can only generate formal trademark rights.The governance of the trademark law has three basic principles,i.e.,preventing confusion,anti-dilution,and maintaining fair competition.The trademark law in China focuses mainly on its IP law attributes while overlooking its attributes of commercial and competition law,so it relies excessively on the registration system for obtaining trademark rights while undervaluing the trademark rights obtained through use,leading to games of trademark rights in paper and institutional challenges.The fundamental way to improve the Chinese trademark law could be,advisedly,adoption a use-based acquisition system alongside the registration system to overcome its institutional defects and effectively address these challenges.
trademarkregistration systemuse-based acquisition systemcommercial lawcompetition law
万方数据
维普
