| This dissertation focuses on the basic questions of trade mark infringement---thecriterion of trade mark infringement or the construction of trade mark infringement. It alsogive the theoretical foundation for the judicial practice of trade mark law in the background ofexpansion of trade mark right. My experience on the judicial practice of intellectual propertybegan in2002when the trade mark law was entered into effect. I felt that the trade mark rightwas expanded by judiciaries, administrative department and some scholars. In2001, Jul.,Supreme People’s Court regarded that the registration of domain name with the registeredtrade mark was one of trade mark infringements. In2001, Oct., the trade mark law wasrevised to support that reverse passing-off was one of trade mark infringements. In2002, Oct.,Supreme People’s Court regarded that the usage of trade mark prominently and theregistration of domain name with the registered trade mark in the digital commercial issuesare trade mark infringements. In2004, Regulation of the P. R. China on the customsprotection of IP regarded that the goods that will be exported from China with similar or sametrade mark in China should be detained. Almost in the same time，the IPR practitioners focuson such issues as dilution of trade mark, OEM，Confusion before sale, comparativeadvertisement. These discussions are confused with the judicial practices. So I always thinkabout the basic theory of trade mark law. Several years later, I think that only those usage oftrade mark which is suited and confusion by consumer at the same time are the practice oftrade mark infringements, or it should be regulated according to Law Against UnfairCompetition of the Peoples Republic of China. These thought gave the trial practice clearideas. And the trade mark law should be completed. So I try to explain the ideas to give somesuggestions for trade mark law.This dissertation is divided into four parts with about120000words. In the first part, thedefinition of trade mark was explained from several respective. On the foundation, the reasonwhy trade mark should be protected is explored. This is the base for the criterion which willbe reconstructed. In the second part, the two constructive elements are explained to give myown ideas about what is trade mark infringement. In the third part,the relation of Trade MarkLaw and Law Against Unfair Competition of the Peoples Republic of China is discussed. Theusage of trade mark without confusion of consumers is one of the unfair competitions, and thesomewhat usage of trade mark is discussed too. In the fourth part, the trade mark regulation are compared to analyze the present Trade Mark Law, and the suggested text of TradeMark Law is put out.The First Part Review on Trade Mark Right. The content of trade mark should beconsidered. Our law only considers what can be trade mark. For common people, theknowledge comes from the daily life, but they don’t know the difference between the marks.For them, the trade mark means the source. So I think that trade mark means the source ofgoods. The definition explains that marks have three elements: marks, goods and the owner ofthe trademark. It is can be analyzed with the semiotics. Trade marks as other sign are socialpsychology which is founded in the common society. So the trade mark should be consideredwith usage to perfect the trade mark protection. In this way, we can give the trade markinfringement a good criterion.After analyzing the content of trade mark, the justifications of trade mark are explored.Firstly, it can be understood from the social root. That is to say, the action of the humanbeings in the society is arranged according to less cost. More goods appeared after industrialrevolution, it was very important for people to find the goods they liked. Trade marks werewhat the enterprises wanted. In the modern times, the function of trade mark is still importantfor people to find the goods in a short time. Secondly, According to the theory of Lock, peoplecan create the conceptual works under the former works. The second meanings appearedwhich was good for trade mark. It should be protected according to Lock.Last, trade mark has its meaning that connects the goods. So “trade mark usage” and “theability to confuse” should be the criterion. Otherwise, the disorders appeared in the judicialpractice. It is also the foundation for the late three parts.The Second Part: the judgment of trademark Infringement. It is very important for us toknow “trade mark usage”. From the point of semiotics, trade mark is constructed withsignifier, signified and referent. The simple action to make mark is not the usage of trademark because there is no connection between trade mark and goods. From the legal text ofAmerica, EU and Taiwan District, the usage can be regarded:1)real usage;2)on theregistered goods;3)agreement;4)in the meaning of trade mark.The probability is very important for the judgment of infringement. Consumers canconfuse who are called related people in China. Confused trade mark and goods should beconsidered together. The way is used to verify in the America to see if the rate of confusion inthe consumers changed. Many disputes were dealt with in this way. It was a n important element for court in the USA. In the history of trade mark, the types of confusionexpanded.But this way had its shortcomings such as big cost.The intention of the common people should be considered to judge confusion.Comparison about entity and part. The similarity is a question of degree. There is nocriterion about the similarity. The way is enough. Though many law put confusion andsimilarity of goods together, the true conflict reason is confusion.The Third Part: the Legal Regulation of Trade Mark. Generally Law Against UnfairCompetition of the Peoples Republic of China is the general law, and trade mark law is thespecial law. But the idea for them is different. Trade Mark Law is private law, and it focuseson the trade mark right to ensure the economic order. But Law Against Unfair Competition ofthe PRC ensures the public element to give the entities good market. And they differ in actionregulation, administrative actions. Law Against Unfair Competition of the PRC can be used todeal with the issues such as trade mark used as company name, OEM, trade mark dilution.And the usages such as literal description, decoration and exhibition are not trade mark usages.To the non-trademark usages, literal description is common. But this kind of usage is notconnected with the enterprise and its skills, management and market credit. So it should notbe regulated by trademark law. The case about Lu Dao and Am. Airlines, Inc. v.1-800-Am.Corp.can be used to interpret.The Fourth The Reconstruction of Trade Mark Infringement. Comparatively,1114ofTrade Mark Law of United States has the same idea with me.And the1125regulate the trademark usage without ability to confuse. The law in EU has the same idea with me,too. That isto say, if it is not connected with the ability to confuse, it should be regulated by law againstunfair competition. The trade mark law in Taiwan thought that the infringement of trade markcan be divided into two parts which are constructed with usage and the ability to confuse. So Ido not agree with it that damage of well-known trade mark should be an infringement of trademark. It should be a kind of unfair competition.The actions in52th title are common, so it is the basic regulation. The construction areonly “same or similar goods”+“same or similar mark”. But foreign laws regard confusion as aconstruction or criterion.“Confusion”appears only once in our law. The Supreme People’sCourt does not regard confusion as construction. It reflects the shortcomings of the legislation.If confusion is regarded as the criterion of the infringement of trade mark, the legal normswill be distorted. From the perfection of theory, the ability to confuse should be regarded as construction but no the criterion for the similar trade and similar goods. And at the same timethe “similar trade mark” and “similar goods” can be used as the main element of the ability toconfuse.The sale of the goods with marks is the usage of trade mark. The present trade mark lawregard this kind of action as independent norm, the main reason is that it is thought with civilconceptions about infringement. If the sale infringes other property right, the responsibilitycan be read with tort law. Actually, only man can infringes trade mark right, but not goods. SoI thought that the logic problem should be considered while revised.From the point of trade mark usage, the print of trade mark can be regarded asinfringement without the connection to goods. So it is a problem in our trade mark law. In myidea, only is the mark connected with the goods, the mark is trade mark. But trade mark printenterprises has malice, he should be responsible with those who use the trade mark withgoods. The idea that the trade mark infringement needs trade mark usage and the ability toconfuse can explain it.Reverse passing-off is hot discussed. I think that it is not a king of infringement becauseit is not used. And consumers are not confused with it. So reverse passing-off should beregulated in the law against competition.The usages of trade mark and the ability to confuse can be interpreted with theconsideration of judges to deal with the new situation. Other situation can be put in the lawagainst unfair competition because of its openness. So the item5of52th title can be pushaway.In all, the tort act without the “trade mark usage” and “the ability to confuse” at the sametime can be put in the law against unfair competition. Of course, before the revision of lawagainst unfair competition, there can e part to deal with these acts. |
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