Research On The Regional Issues In The Confirmation Of Trademark Authorization

Among all the objects of intellectual property rights,trademark has the strongest cross-border attribute,and the purpose of trademark legislation in different countries is basically the same,that is,to protect consumers from confusion.Based on the spread of the Internet and the convenience of cross-border travel,it is easy to find the trademarks used and publicized abroad.Similarly,cross-border trademarks are also convenient to enter the market of another country,and even the phenomenon of "trademark has not arrived,goodwill has arrived" may occur.For this increasingly common phenomenon,if it is not protected,it will hinder foreign investment to enter China and China’s open economic system,and it is more likely to cause confusion and damage to domestic consumers.However,due to the fixed cognition in academic theory and the general judgments of domestic courts,there is a wrong tendency in judicial decisions of courts at all levels.For example,one-sided understanding of the requirements of Trips Agreement leads to the conclusion that Articles 13 and 32 of the trademark law require that unregistered trademarks must be actively used in China in order to be protected.These traditional regional misconceptions caused many foreign trademark goodwill can not be smoothly "passed on" to China,which makes trademark registration on evil purpose become a "legal" behavior.To protect foreign trademarks from unauthorized registration and use is not only a requirement of Trips Agreement,but also will protect the Chinese public from confusion.For the understanding of this problem,the core is to grasp the balance between regionalism and prevention of confusion.Strictly abide by the regional protection,will not be able to protect foreign trademarks,even if it has been well-known at home and abroad.Similarly,trademarks with certain reputation can not be protected according to the above views.And this will increase the behavior of trademark registration on evil purpose,and produce the risk of confusion.If we give up the regionality,it may make our domestic operators bear extra pressure of overseas "prior right".The essence of the protection of unregistered trademarks lies in the protection of goodwill.Based on the objective development trend,it is necessary to further study the understanding of regionality in the context of economic globalization.As for how to protect the "goodwill" generated by cross-border trademarks in the stage of trademark authorization and confirmation,there are some researches and practices in some countries,mainly adopting regional behaviorism and effectualism.For example,the common law system protects unregistered trademarks by counterfeiting suit,while the civil law system protects international obligations according to domestic statute law.However,the degree of protection in these countries is still different,even quite different.For example,the degree of recognition of the exception to the well-known trademark theory in the judicial circle of the United States is also different,which reflects that this universal problem deserves our in-depth analysis to find a reasonable answer suitable for China’s development.From the perspective of foreign theory and judicial practice,according to the level of foreign trademark protection,it can be divided into three modes: the strict application mode-the United Kingdom,in most cases,requires that the actual use of trademarks should take place in the country,or carry out publicity for domestic customers;the relative application mode-the United States,which focuses on the international popularity of trademarks,where the actual use is weakened.However,the premise of protection in the United States is still based on its own perspective;loose application mode-Japan,which has largely weakened the principle of regionality,has far exceeded the common practice of Trips member states in protecting foreign trademarks.For the protection of foreign trademarks,its main purpose is to prove the malice of the third party registration,and the standard of proof is to know,that is,"presumed malice".As far as our country is concerned,how to further optimize the business environment of foreign entities and expand the degree of openness through system construction can be studied by referring to the beneficial experience of foreign practice in considering the trademark registration system,preventing confusion,protecting domestic operators and cracking down on malicious registration,so as to draw a reasonable model that our country can follow.In principle,the effectiveness of foreign trademarks should be recognized as "international use + well-known and with reputation at home".In order to protect well-known trademarks,those who seek Article 13 remedies for foreign trademarks should adhere to the principle of regional effectualism,and deny the act of prior registration regardless of whether the prior registration is malicious or not,so as to comply with the provisions of Trips on the protection of well-known trademarks;those who seek Article 32 remedies for foreign trademarks should still adhere to the principle of regional behaviorism in the absence of international treaties or multilateral agreements.However,if the foreign trademark owner can provide evidence such as the other party’s "malicious" registration,if he wants to register the trademark for transfer fee or use his goodwill for unfair competition,he can lower the threshold of protection and adopt the principle of regional effectualism.