Studies On Private International Law Of Trademarks

Historically it was later to begin with studying on private international law of trademarks than other legal departments and it has seldom been regarded as a special topic to be studied home and abroad. Especially, there has been no systematic study in this respect based on the System of Great Private International Law of the modern science of private international law. In the 21st century, the contexts of Internet, Post-TRIPS and Postmodern have challenged the traditional international trademark law. This dissertation has made a systematic, comprehensive and through study on private international law of trademarks in line with the theory of the Great System of Private International Law of the science of private international law and reconstituted the system of international trademark law by the way of reduction.This dissertation, composed of five parts (introduction, the fundamental doctrines, the prime contents, the developing prospects and conclusion), is divided into nine chapters and contains about 300 thousand words in all.The introduction part delineates the importance of trademarks in the social life and the current situation of study on the trademark Law. It argues the international trademark law should be reconstituted from the angle of private international law. And it emphatically expounds the train of thought, that is, to reduce the System of Great Private International Law by taking the example of the trademark Law so as to study private international law from individual legal departments. It also summarizes the value of methodology of studying private international law of trademarks.The first chapter is about the thoughts on private international law of trademarks in the respect of the law philosophy. This chapter clarifies three issues, which has been regarded to hinder studying private international law of trademarks, that is the territoriality, the public nature of trademark rights and the Globalized Protectionist Scheme for Intellectual Property. (1) If it isn't witnessed that territoriality is a characteristic of every trademark right, the view that territoriality hinders international private law regulating the legal relationship of international trademarks will be no longer tenable. (2) The public nature of trademark rights hasn't changed its private nature, and the legal relationship of international trademarks should be regulated by the science of private international law. (3) In the times of Knowledge Economy, it is a need of international society reality to discard the Globalized Protectionist Scheme for Intellectual Property and to reconstitute international trademark law in line with modern private international law which esteems trademark laws of individual states.The second chapter is about an analysis of the contexts of modern international trademark law. It explores the challenges with which traditional international trademark law confronts in the contexts of Internet, Post-TRIPS and Postmodern in detail.At first, the globalization and the trend of non-centralization of Internet and mode of electroniccommerce not only put basic theories and systems of traditional international trademark law into a dilemma, but also break through it, which is based on Board-piece mode. And that they disintegrate the tortious liability system of traditional trademark law and make the coordination of trademark rights on Internet appear complicated.Secondly, traditional international trademark Law has deviated from the new protective idea in intellectual property, that is the public health, equality, continued development and human rights in the respect of establishing international protective systems of trademarks, in the form of legislation and establishing the lowest protective standard.At last, traditional international trademark law has protected trademarks limitedly and established a criterion of subject matters of trademarks in advance and upheld the guidance line of the Globalized Protectionist Scheme for Intellectual Property and so on. These are contradict and conflict respectively with the limitlessness of meaning resources of Postmodern, the enlargement of subject matters of trademarks and the querying the Theory of Western Center.The third chapter is about the reconstituting of the system of international trademark law. The contexts of Internet, Post-TRIPS and Postmodern are three levels of the contexts of modern international trademark law, which can exist without coming into conflict, effect each other and orientate the reconstituting of international trademark law from following three sides of modern international trademark law, which includes the characteristic of times, the development course of system, the origin and development of basic theory.On the basis of Great Private International Law, the concept of international trademark law in this dissertation is defined as follows: the summation of legal norms on the rules and systems, which avoids and solves international trademark disputes. The main characteristics of international trademark law are as follows: (1) from the development course of International Trademark Law, the evolving of the character of international trademark law has a transitional course from the nature of public international law to the nature of private international law and has developed to be a legal department of Private International Law. (2) The regulation object of international trademark law is legal relationship of international trademarks. (3) The assignment of international trademark law is to resolve conflicts of international trademark laws. It is composed of the conflicts law in international trademark laws, the international uniform substantive law in international trademark laws and the procedure law in international trademark laws. (4) Law sources of international trademark law include mainly international legal sources, domestic legal sources and lex- mercatoria.The fourth chapter is about the conflicts law in international trademark law. This chapter summarizes the types of the conflicts of international trademark and its characteristics of complication and particularity. It also puts forwards the following suggestions about the developments of the conflicts law in International Trademark Law.First, the applicable rules of international trademark law should be developed. As for guide-lines, the plural principle should be persisted in. And that over-simplifying should be prevented in thecharacterization of conflict types. As for the rules of applicable law on the property, the laws of the place where the rights are registered or the laws of the place registered originally may replace the laws of the country where the protection is sought. As for the rules of applicable law on contracts, the principle of party autonomy should be adopted more and more. As for the rules of applicable law on torts, the law of the place where the tortious act is committed or the law of the place where the results of the act occur should be adopted.Second, as far as the new and original problems of international trademark laws are, we should explore positively restricting and defining the operation action of trademark rights on the Internet by using the Internet technology or new laws and rules. In the meantime, we should persist in laying equal stress on unilateral doctrine and bilateral doctrine on the conflict norms. We should strengthen substantive trademark laws reforms by the following ways, which are the coexisting mode of trademark rights between the international relations and on Internet or WIPO SCT 's laying down common suggestions on substantive problems of trademark law.Third, to pay more attention to the new developments and effects of the common law of Internet or autonomous bodies of Private International Law in the applicable international trademark laws.The fifth chapter is about the international uniform substantive in international trademark law. This chapter expounds the main contents of the international uniform substantive laws in international trademark laws and advances that its system may be constructed scientifically from the following four aspects: (1) TO persist in concluding convention on one or one side of substantive problems of trademark laws so that the conclusion efficiency of international trademark conventions can be enhanced. (2) TO lay stress on exercising and summation of international trademark practices so that tremendous divergence between states can be avoided when international convention is signed. (3) TO attempt to adopt the mode law or flexible law as the preparation of drawing up international conventions so that the deficiency of flexible application of every state can be eliminated, which is brought by uniform international conventions. (4) TO strengthen the arrangement and the timely revising of the former international trademark conventions. Regional treaties have taken on an important role in promoting coordination of trademark laws among regions. The uniform trademark law in European Union is a paragon of them, which plays a non-underestimate role for the developments of international trademark law and international intellectual property law.The sixth chapter is about the procedure laws in international trademark law. This chapter emphatically probes into the problems of the judicial relief, the jurisdiction of international civil and commercial lawsuit and the recognition and enforcement of foreign judgments. Globalization, the trend of non-centralization and fictitious nature of Internet has made the use of trademark on Internet become a global use, has led to the confrontation between the autonomous management and the providing protecting by laws in the using of trademark rights, and has made the connecting points of traditional jurisdiction forfeit. After comparing the three theories (Stream of Commerce, Commercial Effects, relative jurisdiction )on it, this chapter argues that the advancement and practice of the Theoryof Stream of Commerce not only satisfy the basic contact demands with defendants when courts possess jurisdiction over them, but also its latest Accessible Standard can be operated more easier. Furthermore, it can avoid emerging the value trend of excessive pursuit of native interests in international jurisdiction theories, and then it can realize fair and reasonable distribution in court jurisdiction among states in the world. In the case of the recognition and enforcement of foreign judgments, Hague Draft Convention on Civil and Commercial Matters and Foreign Judgment hasn't stipulated the recognition and enforcement on the international trademark disputes, but its globalization mechanism has important significance for the resolution of international trademark disputes and it is worthy of our expecting. The particular stipulations of Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters on Property, for example, no enforcement of non-negotiation contracts and no enforcement because of law application, will exert influence on the resolution of international trademark disputes.The seventh chapter is about the enlargement of scope of subject matters of trademark in international trademark law. This chapter describes that international trademark law has made a response in the respect of it's basic category in order to conforms to the tide of the development of Postmodern thoughts:(l) the development of the theory on the criterion of subject matter of trademark. In order to set up a model of criterion of subject matters of trademarks scientifically, the advanced character of Teleological model should be absorbed, that is to say, the dependence of Ontology, Assimilation model and Categorical model on the classes of subject matters of trademarks which is classified in advance should be abandoned instead of more flexible standard. Whatever character and form of things is, they are protected by trademark law if only they can identify the source of products and can not obstruct the ordinary commercial competition;(2) more and more subject matters of trademark. Among them, the development of trade dress is the best example. It is different from general subject matters and it is a complex of many subject matters that includes many traditional marks and non-traditional marks simultaneously.The eighth chapter is about the development of concepts of International Trademark Law. This chapter gives a brief of the concepts of domain names, trade names, goodwill, geographical indications and other trade signs. And compares and analyzes deeply them with trademarks. They should be included in trademark law because they have the same functions of identifying and distinguishing as trademarks.The ninth chapter is about the latest developments in the law-making and the mechanism of protecting international trademarks. This chapter highlights the developments of the international uniform substantive law in international trademark laws, which mainly refers to the suggestion of revision on Convention of Trademark Law and three unite suggestions of WIPO. In the meantime, it analyzes the trend that protecting trademark rights internationally is getting more and more complicated. This includes three respects: (1) In the context of Internet, the phenomenon of Truck-Collide of trademark rights has given rise to the model of trademark right coexistence on theInternet. (2) In the context of Post- Trips, international exhaustion of trademark rights is becoming an important topic in discussion. (3) In the context of Postmodern, trademarks have more and more connotation and thus the contradiction between the more outstanding of international character of trademark rights and the more extending of the diversity of individual nations in the legal culture on trademark law is especially noticeable.The conclusion part is about the ideas of international trademark law and the developments of Chinese trademark law. This part analyzes the awkward situation of Chinese trademark law. On the one hand, international trademark law is trying to control the trend of enlarging trademark rights properly and Chinese trademark law must comfort to the demand to perfect the rules on restricting the exercising of trademark rights rationally. On the other hand, it is a more great need for Chinese trademark law to protect trademark rights than the other states and China should take vigorous action to propagate and initiate the ideas of protecting trademark rights. This part argues that if Chinese trademark law wants to develop, both of the two respects must be paid attention to. As for the legislating and exercising of trademark law, China should resist Globalized Protectionist of Intellectual Property, persist in the protective principle of civil right of trademark rights, strengthen the exchange and cooperation with other developing countries and lay stress on using the experience of other countries for reference and so on. In the exercising of trademark rights, it should set up the correct protective consciousness of international trademarks and implement the ideas of international trademark law from the foundation and exploitation to protecting from tort. Moreover, it should strengthen to foster the protective consciousness of trademark rights of the consumer and the public, and to set up correct and scientific ideas of consuming and the protective consciousness of trademark rights.