The Civil Protection Of The Trade Name Right

According to China's current law, the trade name are strongly regional, it is legal that the same or similar trade name exist in different geographical place at the same time, and it is also legal that the same or similar words were used at the same time. In practice, the parties often feel helpless against the law enforcement agencies and the judiciary shrivels because it is difficult to find a legal and logical basis, many problems delay. Some people make use of the situation, which hurt the main players in the market to protect their business reputation and the enthusiasm, but also seriously affect the authority of the law, the legal constraints to achieve fair value.Trade name system involved in the system for protecting the complex issues, the paper does not seek to everybody, and just in a targeted manner to address and resolve these important issues. In this paper, I will start with the basic of the trade name system - the concept of the trade name, characteristics and nature, and the focus is the civil protection of the trade name, seek out the most effective protection of the right mode, and firms the system with civil liability, and our existing businesses and the legal system to analyze the pros and cons of proposed legislative recommendations for improvement. The paper is make up of the following four parts:Chapter 1 The definition of the concept the nature and characteristics on trade name rightThe concept, characteristic and nature of the trade name right are the most basic problem, but also the foundation of the entire feature. As to the protection of the trade name right, the definitions of concepts and characteristics of the trade name right also a fontal work. The characteristics which the other civil rights do not have mean that we should provide them the special protection. At the same time, this paper define the nature of the trade name is the intellectual property rights with both personal rights and property rights, therefore when there is infringement, it should not only be the right person to fill the property damage, but also directly reflects on the personality of the damage to the reputation of compensation.Chapter 2 The trade name right infringement constitute elements and typeThe nature of the trade name is the intellectual property rights with both personal rights and property rights , so consequentially the infringement is civil trespass; civil liability against trade name right is the civil law system of civil liability Group as part of the system of civil liability under the guidance of general principles. Therefore, this section focusing on the constitute elements of the violations on trade name rights: the fault of the infringer, the law-breaking behavior, the damage result, and the consequence between the behavior and the damage result. At the same time, as a result of the nature and characteristics of trade name right, in addition to the above violations constitute elements of the general, it also has a number of special requirements, such as regional and registered principle, etc. Based on the confirmation of above elements, we can identify the violations of the trade name right clearly, citing the type of the infringement.Chapter 3 the claim system to protect the trade name rightThe trade name right is private interest, as to the protection system, the tort is firstly a civil trespass,the civil remedies are the main means to protect it. According to the role, the civil rights can be divided into four kinds: right of control, right of claim, right in forms and right of defense. Firms with the nature of the intellectual property right, the trade name right is right of control. However, the right of control as a basic right can not directly act on the tort, and the right of claim derived on the basis is the direct way to the protection of the trade name right.The right of claim is request for a certain act or not act for certain rights. The obligee practice the right through the conduct of others. Right of claim,in essence, is kinda derived right from certain basic rights .This article holds that the claim right system of trade name right is make up of intellectual property claim rights and the claim right of creditor,which the claim right of creditor also include the right of action for the recovery of damages and claim right of unjust enrichment, these two rights are dual under certain circumstances, we can take the fit right based on the specific needs of infringement facts, and can not be lumped together.The action offense the trade name right is tort, the basic methods to stop the abuse is the claim of the intellectual property right, as like ceasing the infringing act, apology, elimination of the effects,etc. The trade name owner can appeal the prohibition before the lawsuit, the intellectual property rights practice advanced, and thus prevent a further widening of the loss; or practice the right of action for the recovery of damages and claim right of unjust enrichment.Part IV The legislative defects and improve vision for our civil protection of trade name rightChina has no specific laws to protect the trade name right, it contained in the relevant provisions of law among the various departments; also unlike the "German Commercial Code," which the trade name will be provided as a separate chapter, China's protection of the civil rights for trade name still exist many legislative shortcomings, such as unreasonable of the regional registration system, the concept and the nature of the trade name right are confusing, trade name right violations that more fuzzy and ignore the trade name of protecting its property, and so on. Therefore China should first strengthen the legislative level to enact legislation to protect the right of trade name to ensure that the right people get the real protection.The author broach the following four proposed legislative proposals with a view to the establishment of a system of the trade name right to increase that recommendation: clear the concept and nature of the trade name right; firms the defination of the trade name right infringement; strengthening the property protection of the trade name right with the fixed compensation system; strengthening the protection of well-known businesses in the institutional.For short, in China the protection of the trade name right is still very weak, and in these circumstances we can only use the existing civil law principle to resolve the widespread infringement problem. In the civil protection system of the trade name right, intellectual property claim rights and the claim right of creditor are two parallel and cross-relief channels, when there is tort,the trade name owners can apply one claim according the degree of the damages. In some circumstances he can also request both of them which the right person receive the best protection. China has not yet complete the "trade name law " ,as to the concept of the trade name, content, features, and other means of protection to the detailed requirements, we can learn from the practice of other countries, their separate legislation or in the "Commercial Code" independent chapter, enabling the trade name protection. Ultimately, it should be adopted gradually strengthening legislation to improve the condition of poor protection of the trade name right.