A Study Of Self-criticism And Reconstruction On China's Legislative System Of Trade Name Right

With the development of market economy, trade name's role as commercial identification and its value are becoming increasingly important, and also it has gained a pervasive concern from commercial bodies. As one important civil right, trade name right has been legislatively added to intellectual property protect system in most countries around the world. There is some legislation related to trade name right in China at present, however, relevant regulations are low-leveled and hardly correlated, and the whole legislative system suffers from imperfection. The lagging of legislation results in inadequate legal protection for trade name right. So the task of perfecting legislative system of trade name right is not only an inherent requirement but also an urgent demand in the development of market economy. On the shoulder of oversea countries'legislative experience in trade name right, this paper probes into current conditions of its counterpart in China, and puts forward several assumptions and suggestions concerning legislative pattern, legislative principles and specific system, in order to completing the legislative system of trade name right in China.Along with introduction and conclusion parts, this paper consists of four chapters.Chapter 1 will offer a review on trade name and trade name right. Definition and nature of trade name and trade name right are cornerstones of this paper, and also the basis of completing legislative system of trade name right. The first section of this chapter will provide the readers with explanations of trade name right from perspectives of legislation and law, define trade name while highlighting its core feature distinctiveness, analyzes its five functions, and compare the definition of trade name with that of other commercial marks like trade mark. The second section makes comment on some representative hypothesis, give analytic demonstrations on three aspects concerning the nature of trade name right (the nonmaterial feature of its object, distinctive feature in itself and legislative practice at home and aboard), and further confirms its intellectual property nature. Analysis of the definition and content of trade name right focuses on discussions of trade name enactment right and subjects that have rights in transferring a trade name; this chapter also identifies the content and subject of each right, and lays a foundation for the construction work of completing legislative system of trade name right. Chapter 2 will provide the readers with legislation of trade name right from aboard. By collecting legislative materials from China and aboard, this chapter observes relevant instances of legislation in international law and countries adopting different legal systems, and introduces in sequence international convention, international model law and relevant instances of legislation in two types of countries adopting different legal systems, i.e. Germany, Japan, and France vs. England and America. Based on the previous introduction, the author of this paper analyzes different instances of legislation by comparison, and summarizes several features of oversea legislation of trade name right: high-leveled legislation, complete legislative system, anti-illegitimate competition law's prominent efforts, and complete right-saving mechanism. This chapter summarizes features of oversea legislation of trade name right, and is hoped to offer experience and references for the perfection of China's relevant legislative system.Divided into two sections, chapter 3 is about the status of protection offered by trade name right legislation. The first section renders an overall review on China's present legislation condition of trade name right by means of enumeration, and classifies them in accordance with different levels of source of law. Section two gives detailed analysis on the status quo of China's legislation of trade name right, and points out defects existing in regulations related to present trade name right: 1. low-leveled legislation and thick administrative flavor; 2. un-unified definition and imprecise orientation of trade name right; 3. hierarchy in management mode and regionalization of right effect; 4. inadequate deciding standards and weak protection for trade name right; 5. inadequate protections from criminal law and imperfect remedy mechanism, etc. Through the analysis above, this chapter renders commentation on and orientation of present legislation of trade name right, and points out direction for further perfection work.Chapter 4 will offer the readers with suggestions to complete China's legislative system of trade name right. This chapter is the most important part of this paper and also the innovation part. Based on previous review, this chapter probes into several aspects concerning how to complete China's legislative system of trade name right (legislative pattern, legislative principles and specific system), and puts forward suggestions. In choosing legislative pattern, the author holds the idea that in order to construct and complete legislative system of trade name right, fist and foremost relationship between this legislative system and Civil Code should be properly dealt with, and trade name right should be classified as one of intellectual property rights like trade mark right, patent right, and copyright and added to the chapter of intellectual property rights in General Principles of Civil Law; second, legislative level of trade name right legislation should be elevated according to the stipulation of trade name right single law; last, bringing a comprehensive mode into full function. On basis of these suggestions, the author comes up with a multi-legislative pattern--Civil Code-- Single Law of Trade Name Right--Anti-illegitimate Competition Law. Concerning the construction of legislative principles, the author puts forward some main principles embodying features of trade name right, i.e. priority protection, fair competition protection and prohibition on confusing it with other types of competition. Concerning the design of specific system, the author holds the idea that on basis of identifying the definition of trade name right system, the work of reforming and completing its management system should be conducted from the following perspectives: First, changing Registration Effectiveness System into Registration Defend System to gear to international regulations; second, changing four leveled registration system into two leveled registration system, with one leveled registration system adopted conditionally; third, adding a cross-search system for registration objections and trade names in avoidance of malicious registration in illegitimate competition and unintentional crash owing to inadequate information. Construction and perfection work of protective system for known trade name, in the following aspects: First, legislatively defining and classifying known trade name; second, legislatively stipulating known trade name's deciding standard; third, endowing known trade names with cross-regional and cross-industrial rights. Efforts in completing remedy system for trade name right should be made in the following aspects: First, identifying types of trade infringing acts, its manifestation and civil liabilities, stipulating proper punitive liability in investigating them to strengthen civil remedy for trade name protection; second, bringing procedure of administrative remedies into full play while focusing on its advantages of simplicity, agility and effectiveness; third, adding stipulations for punishment of trade name right crime to criminal law, identifying serious violations of trade name right as crime and investigating their criminal liabilities by inflicting punishment of limited imprisonment or detention, with fine added or single to strengthen legal remedies in a criminal remedy form.With an era of knowledge economy looming before us, the rapid development of economy calls for complete legislation and protection form law. The completing work of legislative system of trade name should, on one hand, gear to international regulations; on the other hand fit the current conditions of China to fuel economic development. Only in this way can we further construct the legal system of intellectual property right, and strengthen its protection in China.