Research On The Legal Issues Of Right Conflict In Commercial Signs

It is considered as a kind of pragmatic adventure to research the protection of commercial signs from the perspective of right conflict."The right conflict is a false proposition", think the people who adhere to the principle of legal right and negate the theory of right conflict, they believe that any right has its specific boundary, as long as people do not deviate, it won't happen the so-called " right conflict ". If the rights and right conflict issues are observed statically, subjectively assuming that the setting, exercise and protection of the right is always in an ideal state, in favor of the preconceptions of rights of "presumption of innocence", then the theory of right conflict may indeed is a false proposition. However, there is always a long distance between the ideal and the reality, the issue of right conflict generates from the complicated social practice and the luxuriant concept of right, the issue of right conflict is one as Kant's eyes, "this shore and the other shore", different people see dissimilar results from different angles, showing a diversity. People of negative view of right conflict keep a distance deliberately between the theory and practice, by virtue of the principle and the deductive logic they cut legal practice, sacrifice reality variety to obtain a unified theory, causing legal ossification, hindering social development.It should be admitted that the phenomenon of right conflict exists objectively in practice. we should find a balance between the rights in different conflicts from the perspective of the right conflicts, and guide social resources to achieve optimal configuration, which will contribute to the overall protection of the rights of commercial signs, and be useful to guide the construction and operation of legal system in commercial signsThe thesis is carried out as follows:The introduction part introduces the significance and value of the selected topic, literature review, research methods and path of this topic.In the first chapter, the definition of the concept of right conflict is the logic starting point of the study. The concept, essence and function of the commercial signs, the practical and theoretical significance of the theory of right conflict in commercial signs are expounded. There is a "only trademark" trend in the research on legal protection of commercial signs, which is only focused on the protection of trademark, but lack of attention to trade name, domain name, etc..and the relationship between them. In fact, although the concept of the traditional trademark continues to expand, but it still can not contain the definition of the firm, domain names and other identity. "Law of the People's Republic of China against Unfair Competition(Revised Draft)" newly released in February, 2016, defines clearly and expands greatly the concept of commercial signs, including but not limited to specific name of a well-known commodity, packaging, decoration, the shape of goods, trademarks, name and referred to as of enterprises and enterprise groups, size, the main part of the domain name, the website name, the page, name, pseudonym, stage name, channel column name, logo and the concept of commercial sign can contain other new logo, it is of important significance to introduce "business logo" concept into legislation. The commercial sign is a multi-dimensional identification system, its form is a symbol, its content to deliver is particular information, its core is goodwill, which can convey commodity source information to consumers and has the characteristics of openness. Commercial signs include all kinds of symbols, forms, or other markers with identification function in commercial activities. Different commercial signs have different right boundary according to their respective components, functions and the sources of their rights. The diversification of their identification function leads to the complexity of the delimitation of the right scope. Identification of the possibility of confusion in the right conflict in commercial signs, derives from the impairment of the identification function. At the same time, quality assurance, advertising and symbol recognition and other derivative functions expand the scope of the protection of commercial signs. The accurate grasp of the above basic issues of commercial signs constitutes the theoretical basis for resolving the right conflict in commercial signs.The clarification of the idea "Right conflict is a false proposition" is another important part of this chapter. The idea originates actually from Randall, modern American jurisprudential scholar and other "legal formalists", who dedicated himself in logical reasoning and deduction, the evidences in support of his idea mainly lie in as follows: first, the rights must comply with the Principle of legal prescription, those which are not expressly provided for in the law can not be listed for the rights. Second, the real right is legitimate, otherwise is not legal right; Third, the right must agree with the inevitable requirement of its clear boundary, so it is impossible to produce a conflict between the rights. The above issues are actually related to the definition of the connotation of rights. Rights can be used in a variety of meanings, it should be a natural conclusion that there would be no right conflict if rights would be defined according to two standards of the formal legitimacy and substantial legitimacy and established inversely based on the results of substantive legitimacy. While complexity and variability of practice are often beyond the imagination of legislators, the same or similar commercial signs of peaceful coexistence originally may conflict, Right conflict is in a composite state of coexistence and continual transformation between the dynamic and static conflict, and it is also in a composite state of continual transformation between legitimacy and illegitimacy, apparently the absolute right legalism can not adapt to the need of the social development and changes. Infringement judgment thinking of illegality preliminarily leads easily to the "either or" judgment and a single choice. Based on the presupposition of right conflict as a practice phenomenon the thesis starts logically. The extension of the right is relatively broad, including the rights of substantive legitimacy and formal legitimacy, but also the legal interest which has not yet right status. The elements of right conflict are as follows: firstly, the rights in the right conflict(including legal interests) have the corresponding rights source. Secondly, the legal subjects of right in the conflict are different, but commonly point to the same object. Thirdly, there is a conflict between the legal Subjects of right. It provides a completely new perspective to solve the disputes of rights and to improve the protection of commercial signs from the perspective of right conflict, rather than from the perspective of general tort.The second chapter is "the causes of the right conflict in the commercial signs ". Firstly, the scarcity value of the commercial signs themselves and the great economic benefit of the goodwill which is gathered by the commercial signs are the real causes of the right conflict in commercial signs. Right conflict is essentially a conflict of interest, and the resolution of the right conflict is a process of interest measurement and balance. Secondly, the particularity of the commercial signs and the interaction of the rights are the internal reasons for the right conflict in the commercial signs. Compared with the real right, commercial sign--- right object of the commercial sign right is immaterial, resulting in difficulty of possession and protection; As a type of intangible assets, the constituent elements of commercial sign has the characteristic of coincidence; The compositions of the right in commercial sign has the characteristic of licensing independently; The right in commercial sign is exercised regionally; The significance of commercial sign is changing all the time; The judgment of similarity among commercial signs has the characteristics of both fuzziness subjectively and variability objectively, making the border of commercial sign rights even more elusive; From the perspective of system level, the dispersity of administrative bureaus for commercial sign is mechanism background of the right conflict; The formulation and revision of law, the legal adjustment of interest relations norms, has the characteristic of inevitable posteriority and imperfectness under the complicated interest relations and the rapid development of modern technology. "The legislative task is to establish the general rules of law from the point of view of the overall situation. The general rules must be established in principles metaphysically, but not limited to every possible specific problem and trivial provisions." The systematic causations of the right conflict in commercial signs are as the following: the lack of systematicness in Chinese legislation system as exotic in commercial sign, the lack of settlement rules for right conflict, the decentralization of the administrative authorities in commercial signs and the non unification of the judicial judgment standard.The third chapter is "the basic principles to resolve the right conflict in commercial signs". The legal principles aim to ease the conflict between legal norms and social changes,they open the door for the judge to make a value judgment that is different from the existing norms, which can adapt to the social changes. The solution principles of the right conflict in commercial signs include the protection principle of the prior right, the principle of the right level, the principle of good faith and the principle of justice and fairness. The principles of conflict resolution can be used as the guiding thought to improve the legislation of the commercial signs, and to promote its internal harmony and unity; On the other hand, the principle also has the normative function. The protection principle of the prior right is the most important principle to solve all kinds of right conflict, it has the normative function, its application also has the relativity, should impose certain restriction. The principle of the right level aims to divide the boundary of rights, it is the way to bridge the conflict between right and legal Interest, in other words, it helps judging whether the interests have the status of the rights or legal interests, the status is the prerequisite for the establishment of the right conflict, but also an important step in the conflict resolution. The principle of good faith embodies the legislative fundamental purpose of commercial signs, it is also determined by the nature of the information of the object of the commercial sign, the obligee of the commercial sign should ensure the information is true,without the subjective intention of the right abuse, with mind of good faith. The principle of fair competition is a unique principle to solve the right conflict in commercial signs. In view of the possibility that the trend of propertilization and expansion in commercial sign may cause damage to competition, in order to maintain the formed market pattern, the prohibition of confusion and anti dilution are necessary requirements to maintain the principle of fair competition. The above principles of different levels deal with the right conflicts in commercial signs, with direct guidance and coordination, their usage should follow the basic idea that legal rule is prior to legal principle, specific principle is prior to basic principle, applied harmoniously.The fourth chapter is "the classification analysis on the resolution of right conflict in commercial signs ". As the Japanese scholar Minobe Dachiyoshi said, " If the difference would completely be denied because of commonality between the two, it would be too partial to the common nature of the study, ignoring the differences in the similarity." Besides accord with the basic principles of right conflict, the necessity of classification analysis on the right conflict lies in, in spite of the existence of commonality in the right conflict of commercial signs, the fact that different commercial signs in different forms focus on different functions, and rights and legal interests of the different levels show different forms of right conflict respectively. By the methods of the empirical analysis and system analysis, through the analysis of the various typical cases to the judicial practice, the classes of right conflict are divided into three kinds of conflict of rights: the ones among the proprietary right of commercial signs, the ones among rights and legal interests, and the ones between commercial sign rights and other civil rights. The classification analysis and processing from microcosmic angle has practical guidance value.The fifth chapter is "the system perfection for the solution to the problem of right conflict in commercial signs in China ".In addition to the research on basic principles and classification analysis of right conflict, this chapter puts forward the suggestion on the system perfection from three angles of the legislative reconstruction, Substantive resolution and Procedure reformation mainly according to different causations of right conflict in commercial signs. Regulation of the right conflict in commercial signs is one of the key issues of legislative perfection, legislative Systemization is also an important way to solve the right conflict in commercial signs. Based on the comparison and reference of legislation of the commercial signs in the United States, Germany and other countries, the dualistic pattern of the legislation is proposed, commercial signs legislation system as main body, with assistance of special law of commercial signs and anti unfair competition law, aiming to compensate for the division and omission of the right conflict resolution system in commercial signs. From the perspective of liability forms in right conflict, both parties have rights or legal interests outwardly, which endows the dispute cases of commercial signs with its special treatment. Firstly, the coexistence of commercial signs is feasible ways to solve the right conflict. Secondly, the civil liability forms of stopping infringement, compensation for losses and additional distinction marks possess particularity in application. Thirdly, The reformation of procedure for the solution to the problem of right conflict is an important way to resolve the right conflict in commercial signs. The procedure is the relationship according to certain orders, methods and procedures, also the t system of behavior in order to make legal decision. The procedural justice is the guarantee of realization of entity justice in the right conflict of commercial signs. In the administrative litigation of ownership in commercial signs, the fact that the courts can not decide directly the effect of right in commercial signs causes the litigations loop, with the effect of commercial signs uncertain, as a result the normal business activities can not be carried out promptly, which does not conform to the principle of efficiency. The measures including establishment of the unified registration of classification in commercial signs and filing system, perfection procedure system of the ownership in commercial signs, and optimization of the connection between the administrative procedure and the judicial procedure for solution to the problem of right conflict in commercial signs, can alleviate the conflicts resulting from dispersion of authorization and law enforcement in the commercial signs rights from fountainhead, promoting the substantive solution to the right conflict in commercial signs.