毕业论文外文翻译-美国标法与中国商标法司法保护之比较.doc

美国商标法与中国商标法司法保护之比较【1】 刘璐 美国商标法的保护范围 美国商标保护来自普通法而非立法或宪法规定，’s protection between the United States and China Liu Lu The scope of protection of the U.S. Trademark Law 　The United States trademark protection derives from common law rather than from legislation or from constitutional provisions like patents and copyrights. The common law remains a basic source of protection for trademarksbut trademarks today can also be protected by both federal and state statutes. Thus,where trademark problems arise there is often a complex interplay between common law rules and statutory provisions. 　 In the US,assuming that a trademark qualifies for protection,rights to a trademark can be acquired in one of two ways:（1） by being the first to use the mark in commerceor（2）by being the first to register the mark with the U.S. Patent and Trademark Office（“PTO”）But registration with the PTO is not required for a trademark to be protected, however, registration does confer a number of benefits to the registering party. The advantage of having a registered mark is that after five years of unopposed use,the mark becomes “uncontestable”.An uncontestable mark cannot be attacked for the reason that it is descriptive. Even without incontestability,a registered mark has a presumption of being a valid trademark,placing the burden on the plaintiff to attack the defendants mark. 　 Under state common lawtrademarks are protected as part of unfair competition,and trademark registration is not required.States statutory provisions on trademarks differ,but most have adopted a version of the Model Trademark Bill （MTB）or the Uniform Deceptive Trade Practices Act （UDTPA）.The MTB provides for trademark registration while the UDTPA does not. 　 While under federal law， registration is not required to establish rights in a mark, nor is it required to begin use of a mark. A federal registration, however, can secure benefits beyond the rights acquired by merely using a mark.For e