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  3. Trademark What is a trademark? Trademark is any visible sign or device used by a business enterprise to identify its goo

Trademark What is a trademark? Trademark is any visible sign or device used by a business enterprise to identify its goo

admin2010-04-12  29
问题                          Trademark
    What is a trademark?
    Trademark is any visible sign or device used by a business enterprise to identify its goods and distinguish them from those made or carried by others. Trademarks may be words or groups of words, letters, numerals, devices, names, the shape or other presentation of products or their packages, color combinations with signs, combinations of colors, and combinations of any of the above signs.
    What are the functions of the trademark?
    By indicating the origin of goods and services, trademarks serve two important purposes. They provide manufacturers and traders with protection from unfair competition (one person representing or passing for sale his goods as the goods of another), and they provide customers with protection from imitations (assuring them of a certain expected quality). In terms of the protection of the rights of trademark holders, the law in most countries extends beyond the rule of unfair competition, for a trademark is considered the property of the holder; and, as such, unauthorized use of the trademark constitutes not only misrepresentation and fraud but also a violation of the holder’s private property fights.
    How to register a trademark?
    In most countries, registration is a prerequisite (先决条件) for ownership and protection of the mark. In the United States, however, the trademark right is granted by the mere use of the mark; registering the mark provides the owner only with certain procedural advantages and is not a prerequisite for legal protection.
    It is not necessary for the mark to be in use before a registration application is filed, although most countries require applicants to have a sincere intent to use the mark after registration. Formerly, the United States was one of the few countries requiring actual use prior to registration. Under the Trademark Law Revision Act of 1988, the United States permits registration upon application showing an intent to use the trademark in the near future.
    In many countries, ownership of a trademark is not acknowledged until the mark has been registered and gone uncontested (无异议的) for a given period of time, so as to afford protection to a prior user of the mark. Even after that period has passed, the prior user may move to have the registration canceled. After a certain number of years (from three to seven, depending on the country), the registration and ownership become uncontested.
    For a mark to be registered, it must be distinctive. In many cases a mark, when first brought into use, may not have been distinctive, but over time the public may have attached a secondary meaning to it, forming a specific association between the mark and the product, thus making the mark distinctive, hence registrable.
    How to treat the infringement?
    When a question of infringement (unauthorized use) of a trademark arises, the primary legal question addressed in court is whether the accused infringer’s use of the mark is likely to confuse the purchasing public. In most countries, including the United States, protection against infringement extends to goods or services similar to those covered by the registration. In countries following British law (same 66 nations), an infringement action can, however, be brought only for the precise goods identified in the registration.
    How to deal with the transfer of a trademark?
    For a long time the rights of a trademark could not be transferred separately from the business to which it was attached. Now, however, because trademarks are viewed as property, they may be sold, inherited, or rented, as long as such a transfer of rights does not deceive the public. In most countries a public notice of such a transfer must be given. A common form of transfer is international licensing, whereby a trademark holder allows the use of his mark in a foreign country for a fee. Often in such instances the foreign licensee must meet certain product quality requirements so that his Use of the mark does not deceive the consumer.
    In what cases may you lose your right of the trademark?
    There are some instances in which the right of trademark may be lost. The two most serious reasons for loss of trademark are the failure to use a registered trademark and the use of a trademark that becomes a generic term (通称). In many countries if a trademark is not used within a certain number of years, the rights of protection of the mark are test. In the United States when a trademark becomes a generic term in the public’s mind (such as Aspirin) the courts may decide that the trademark holder no longer has rights of protection. In other countries the courts are not concerned if the mark is considered generic, and the original trademark holder retains all tights and privileges of the mark.
    What are common trademark laws?
    Although each nation has its own trademark law, there are increasingly multinational efforts to ease registration and enforcement practices, The first international agreement was the Paris Convention for the Protection of Industrial Property of 1883, which has been regularly revised ever since. It sets minimum standards for trademark protection and provides similar treatment for foreign trademark holders as for nationals. Approximately 100 countries are party to the Paris Convention.
    Uniform trademark laws have been passed by the African Intellectual Property Organization in 13 French-speaking African countries, the Andean Common Market in Colombia, Ecuador, and Peru, in the Scandinavian countries, and under the Central American Treaty on Industrial Property (Costa Rica, E1 Salvador, Guatemala, and Nicaragua). In addition, nearly 30 countries (mostly European but including Morocco, Algeria, Vietnam, and North Korea) adhere to the Madrid Agreement, which provides for a single application process through filing in a central office located in Geneva.
The international conventions interpret trademarks as the private properties of the trademark holders.
选项 A、Y
B、N
C、NG
答案C
解析 文中第二段提到“the law in most countries extends beyond the rule of unfair competition, for a trademark is considered the property of the holder.”在大多数国家，法律对商标功能的解释不仅仅局限于反不正当竞争方面，因为商标被看做是其持有者的一种财产；而文中并没有提到国际惯例对商标是如何解释的。
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