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Experts Say There Are Three Major Shortcomings In The Draft Trademark Law.

2011/9/13 10:03:00 47

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Three Shortcomings Of The Trademark Law Draft

The trademark law draft strengthens the public authority expert to say that still has the planned economy thought.

The Legislative Affairs Office of the State Council announced the draft of the revised trademark law in September 2nd.

The first sentence of Article 1 of the draft is "in order to strengthen trademark management".

"No other country in the world will strengthen trademark management as the legislative purpose of trademark law."

Beijing affairs

Real intellectual property rights

Cheng Yongshun, director of the development center, said in an interview with the Legal Daily reporters that the draft opinion still has a strong "planned economy" in the value orientation of the purpose of the trademark law.

In the specific system design, the revision is not enough, and the "public power color" of administrative management is still more obvious.

Regrets 1:

Legislative purpose and strengthening public power

"Strengthening trademark management" as the legislative purpose of trademark law, this value orientation can be traced back to the "trademark management regulation" issued by the State Council in 1963, which has been extended to this amendment.

It shows that China's trademark legislation still has strong planned economy color.

Cheng Yongshun said.

Cheng Yongshun believes that the purpose of legislation is to strengthen the management function of trademark law, and does not emphasize the core value of trademark protection.

Copyright law, patent law and so on, all involve the management of social order, but do not regard management as the legislative purpose.

Cheng Yongshun pointed out that management is a means and can not be used as a legislative purpose.

This concept is bound to seriously affect.

Trademark law

The core value orientation is bound to seriously affect the system setting in the amendment law.

Regret two:

There are problems in the expression of exclusive right to trademark.

"The right to exclusive use of trademark" is a problem left unsolved.

Li Shunde, director of the law and Intellectual Property Department of Graduate University of Chinese Academy of Sciences, believes that the "right to exclusive use of trademark" is a substitute for trademark rights.

He said that the right to trademark is a series of rights, including the right to use the trademark and the right to prohibit it.

Mark right

The right of renewal, the right of disposition and the right of trademark objection.

The right to exclusive use of a trademark is another expression of the right to prohibit trademark.

However, although the right of prohibition is the most important content of trademark right, it is not the whole of trademark right.

Regret three:

There is no distinction between the cancellation and invalidation of trademark rights.

The cancellation and invalidation of trademark rights are the reasons for the termination of trademark rights.

In most countries and regions of the world, trademark law clearly distinguishes between revocation and invalidation.

The draft did not distinguish clearly.

"This is a big problem."

Li Shunde said.

The cancellation of trademark right refers to the fact that the trademark right has lost the basis of continued protection because of the reason of the trademark right, and the trademark authority has decided to cancel the trademark registration.

The trademark rights revoked are effective before revocation.

The reason for cancellation is usually caused by the absence of trademark or the use of trademarks.

The invalidity of trademark right means that the trademark authority has declared that the trademark right has no legal effect from the beginning because of the flaw in the acquisition of trademark right.

The revocable case occurs after the acquisition of the trademark right, and the trademark rights which have been revoked are invalid after being revoked.

When the invalid reason exists when the trademark right is obtained, the trademark right which is declared invalid will be invalid from the beginning.

The legal consequences of the two are different.

Li Shunde pointed out that this is a very practical question, and the draft should be distinguished and stated clearly.

Experts believe that the trademark law should be completely and thoroughly revised.

Each revision will take 3 to 5 years or even longer, and it will not be able to meet the needs of social development.

If possible, we should make "overhaul", that is, in accordance with the requirements of the market economy and China's international conventions, we should make a comprehensive revision from the purpose, structure and content, and create a trademark law with a scientific and reasonable structure, rigorous logic, clear and accurate concepts, and adapting to the requirements of economic development.