Trade Mark And Trade Name Conflicts In The View Of Competition Law

Trade mark and trade name play very important roles in nowadays trade and economy. They mean a lot to the enterprises, customers and governments. However, since the"Hua Du VCD"event in 1998, starting in the VCD players, electric appliance, dressing, foods, etc., many industries are now facing the embarrassments of"free-ride". The situation also has all the community to focus on the problem of free-ride. It is a typical kind of passing off, the mode of this type is take the access of using same or similar trade name to confuse another trade mark, or contrariwise. Unfortunately, there is no provision in the IP law system or the competition law. There appears that some chaos in the judgments of the cases. Many experts are trying to find out a perfect way to dispose this conflict by IP Law. The author is trying to discuss about the circumstance through the view of competition law.This article is consisted by 4 parts:Part 1 is the general situation of trade mark, trade name and their conflicts, including some introductions of the meaning of the trade mark and trade name, and the IP law protection on them. And then, the definition of the conflicts of trade mark and trade name. With the exemplification of the"Bao Xi Niao"case and the"Da Guang Ming"case, the model types of conflicts between trade mark and trade name are analyzed.Part 2 is about the characteristics of the conflicts of trade mark and trade law. First, the conflicts between trade mark and trade law are categorized into the good will ones, and the bad will ones almost involved unfair competition. They are one type of passing off. The reasons of the passing off refer to three aspect: law, economic and social psychology. The behavior infringes the famous companies, the customers and the market. It is the unavoidable result of the development of market.Part 3 talks about the necessity and the possibility of the application of competition law in the conflicts cases. The IP law has some finites that it could not dispose the conflicts. The aim of the competition law is to protect the competitors, customers and competition, and the cases of IP conflicts also hits the point. The competition law should be applied in these cases. There are obvious advantages to view the conflicts of IP rights in the field of competition law.Part 4 includes some suggestion of how to exercise competition law in the trade mark/name conflict cases. Some problems of the system of law-making and justice are discussed with real cases. Typical law, like the law in UK, USA and Canada, are introduced. The author makes suggestions of how to regular this unfair competition, and pronounced several key points in judging, like the factor of fame, the competition relations and the possibility of confusion. Last not least, the general clauses of competition law are important in these cases, the application of general clauses provide farther protection.