Almost every country grants trademark rights on a first come first served basis.
Under this first to file system, the applicant who is the quickest at registering a trademark is exclusively allowed to own and use it. Except in the United States, where the first to actually use a trademark in business is given priority.
In most countries that have opted for the first to file system, including Japan and China, an objection can be filed in court against a person or company whose trademark application has not yet been officially granted.
Still after the finalization of trademark registration, a complaint can be presented, for up to a fixed period, to request the annulment of the trademark right.
Nevertheless, it is important to mention that a claimant in search of somebody else’s trademark right cancellation is required to prove that the trademark at issue has in fact been extensively used by the claimant and already has achieved a high degree of name recognition. The argument can be extended if the accused objects to the court decision.
In Japanese a sake brewer, whose brand name had been registered in China by a Chinese man without the brewer’s knowledge, acquired the trademark right by paying 15 million yen to the man so it could export sake to China his Japanese trademark. Apparently this measure is less time consuming than having to go through a Chinese court.
The Japan External Trade Organization has stated that there are numerous Chinese individuals and companies registering trademarks that could be sold to Japanese firms.
An official of the National Federation of Agricultural Cooperative Associations (Zenno) said, “Should Japanese companies be so loose in negotiating with the Chinese that hold Japanese related trademark rights, it would only encourage the dubious businesses surrounding trademark disputes.”
Under the TRIPS Agreement (Agreement on Trade Related Aspects of Intellectual Property Rights, 1995), member states are required to take legal actions for protecting the appellations of origin regarding items such as wine and distilled liquor. Trademark registration of these place names by people who have no direct connection with these regions should be rejected.
