Font Size: a A A

On Trade Name And The Legal Protection

Posted on:2012-07-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:H JiangFull Text:PDF
GTID:1116330335988475Subject:International Law
Abstract/Summary:PDF Full Text Request
Trade name is the name used by commercial subject during business. Protecting trade name is actually protecting the right attached to it. The reason why I talk about the issue is that our legislation has no explicit definition of trade name but regarding it as the component of enterprise name. Trade name enjoys no independent legal status; there is no trade name right but enterprise name right. There are broad and narrow definition of trade name in academic circle, the former is equal to business name while the latter refers to the name of a shop. Legislation takes the narrow definition, but it makes trade name covered by enterprise name thus cannot get effective protection and lead to many issues. Compared with foreign legislation that focus on trade name, our enterprise name-centered legislation has a lot of problems: such as decentralized and disordered legislation; simple, shallow and conflict provisions and too many regulatory laws. But other countries have specific definition, high-level, clear and comprehensive legislation and effective judicial relief system.By defining trade name and trade name right, the dissertation aims to discuss issues related to the basic principles of establishing trade name protection and propose suggestions. In my opinion, trade name protection must go together with a suit of basic principles to support.Except for introduction, there are six chapters.The first chapter: Historical Study of Trade Name Protection. There are two sections: firstly, on the overview of trade name's origins and legal protections in the international society. That trade name emerges and exists has its rationality and necessity from commercial development point of view. In modern times, it has come into the view of intellectual property law. Many international conventions on intellectual property right can witness; secondly, about the overview of its origin and legal protection in China: the methods and characteristics of trade name protection is analyzed and summarized in chronological order that is before modern times, the late Qing dynasty and the republic of China and after the founding of People's Republic of China. Looking back, we can see differences of trade name protection between China and abroad on legislation modes, aims of protection, and ways of protection etc.The second chapter: The Definition of Trade Name. There are three sections, The first section, a flexible definition and scope of trade name. From my point of view, the full name and core part both belong to trade name scope, the former is the complete business name and the latter is abbreviation. Different legislative interpretation, characteristic can candle their relationships. Then a reposition of the relationship between trade name, enterprise name, business name. The second section, putting trade name onto the big platform of commercial mark for a better understanding. Mainly focus on the relationship between trade name, trademark and domain name. In the second section, the concept of goodwill, its features, and the relation with trade name is defined. Trade name can refer to a commercial subject also may deposit, represent and load goodwill to produce economic value.The third chapter: The Core of Legal Protection of Trade Name. Two section. The first one is the necessity of a clear trade name right. Questions in legislation and practice can prove. In current legislation, General Rule of Civil Law has conflict and deviating definition of right, and enterprise name right failed to satisfy the protection of trade name right. Unfair Competition Law is not so effective. Questions come up, and bring negative effect. The second one is a definition of trade name right. To begin with, it is the exclusive right that commercial subject have to its trade name. There is an analysis of its features. Secondly, doctrines of trade name right, namely, right of personality, ownership of property and compromise doctrine, among which the last one represent most scholars'opinion thus become the general. On the basis, trade name right belongs to intellectual property right and there are proofs. Meanwhile, the different emphasis on trade name right between commercial law and intellectual law is discussed. Finally, combining foreign legislation, I illustrate the content of trade name right which mainly include the exclusive right of use, the permission right and the assignment right.The forth chapter: Evaluation and Establishment on System of Trade Name Acquirement. Because trade name is the starting point of trade name protection, also the important aspect of establishing basic trade name regulation, I have reason to pay attention. There are three sections. The first section is about the way of trade name right acquirement. In general, there are two ways: acquirement by use or registration. By analyzing their respective advantages and disadvantages, I think that it is not necessary for law to regulate that all trade names to register before acquiring trade name right and the main role of registration shall strengthen protection. In addition, for other unregistered trade name, unfair competition law shall provide protection to some extent. The second section is about the select and use and registration. By listing and explaining the relative regulations of countries around the world, I analyze the rule of trade name selection and representation. On the effectiveness of registration, different way of acquirement means different effectiveness. The third section is about how to complete the system of trade name acquirement in our country.The fifth chapter: The Optimization of Trade Name Utilization System. The rule to obey in the process of trade name use is also connected with trade name protection. In Chinese law there is no clear rule of trade name use, what's worse; it may even hinder the effective utilization of trade name right. Therefore, it is necessary to complete our relative regulation on the basis of referring to the experience of foreign laws. The chapter is divided into three sections. The first section is about the rule of trade name use. Foreign laws generally have specific rules on the way of use and the rule to obey. Suggestion is given on the completion of Chinese regulation. The second section tells permit of trade name right. Compared with foreign rules, we see the conflicts and insufficiency of Chinese law. Also, by analyzing rules on lending of trade name in Japanese and Korean commercial laws and on rules of franchising license in American law, I point out the points that worth learning. The third section is about the assignment of trade name. According to the relative regulations both home and abroad, I talked about the way to assign trade name right, the legal rules to obey and the legal effect.The sixth chapter: The Completion of Trade Name Protection System. Two sections, the first section is about the completion of trade name legislation. Firstly, to reform legislation pattern; basic rules should be established with trade name as the centre and, the trade name-centered legislation shall replace business registration-centered legislation. The State Council is proposed to formulate specialized Trade Name Act. Meanwhile, laws should coordinate to adjust from different level as well as different points of view to produce the best results. Secondly, legislation should not only define the concept of trade name and trade name right, regulate the acquirement, select and use of trade name, but also should intensify the protection toward famous trade name as well as time-honored brand. The second section is the completion of identification and relief of trade name infringement. In the first place, define the main type of infringement and analyze the considerations of trade name infringement, in the second place, in the aspect of relief for trade name infringement, protection of prior right and maintenance of fair competition can be regard as the core guiding principle of relief. The infringer may assume civil, administrative and criminal responsibilities under different situations.
Keywords/Search Tags:Trade Name, Trade Name Right, Enterprise Name, Commercial Marks, Goodwill, Legal Protection
PDF Full Text Request
Related items