A Study On The Conflicts And Resolution Between Trade-names Rights And Trademarks

Trademarks and trade-names are essentially commercial tags. Their common feature is to identify the different goods and services, and their common value is to represent the goodwill. With the development of market economy, people are fully aware of the most important asset value of trade-names which used to distinguish different market players and trademarks which used to distinguish different products. But if the two were improper used, it is likely to lead to their negative effects, and constitute an infringement and unfair competition. In recent years, as a mean of unfair competition emerging, and intensified, trade-names and trademarks'similar or same used is becoming a new kind of practical unfair competition. As the similarity of trademarks and trade-names and trademarks, conflicts occur frequently between rights of them, so that the law enforcement officers and judicial officers are deeply headache in the course of resolving the conflicts. However, there are many loopholes in our current legislation, so that the conflicts between the two rights can not be solved. Our current legislation can't act as an administrative and judicial basis for handling problems. It leads that law enforcement standards are not uniform in the practice of the face of such unfair competition, and the results are quite different, appearing inappropriate. It is difficult to completely sanction and deter unscrupulous merchant, and contain the typical unfair competition.The author works at the grassroots of the industrial and commercial administration department, mainly engaged in the practice of law work. In the course of monitoring unfair competition, the author is fully appreciated the seriousness of the conflicts between trade-names and trademarks, and recognizes the difficulties in the existing legal framework to resolve the conflicts of the two rights. Therefore, in order to find ways to solve this problem, and eventually be applied in practice, this paper theoretically explore the conflicts between trade-names and trademarks, to find a suitable condition of our country's legal response referring to the relevant domestic and international legislation and judicial practice, and to establish conflicts prevention mechanisms and sanctions mechanisms.This idea is as follows. Addition to the introduction and conclusion, this paper is divided into five parts. The first part mainly expounds the basic theory of the rights of trade-names and trademarks, and comparative analysis between the two rights. The second part defines the related concepts of "conflicts between intellectual property rights", "the conflicts between trade-names and trademarks "and other concepts. In this part, the conflicts between trade-names and trademarks are classified. According to objective and subjective reasons for conflicts, the author classifies the conflicts to two types, legitimate rights conflicts and improper rights conflicts. In the latter part of the paper, the conflicts resolution mechanisms will be designed for the two different types of conflicts. The former focus on prevention, the latte focuses relief. At the same time, In the second part the author analyses the manifestations and causes of conflicts between trade-names and trademarks. The third part discusses laws of regulating conflicts in the main capitalist countries, and analyzes the rationality and referential experience. The fourth part analyzes the existing legal system in China's regulations on the rights conflicts and points the existing problems. The fifth part offers thoughts and suggestions to improve China's rights conflicts resolution mechanisms, from conflicts prevention to protection and remedies, making a series of more all-embracing theoretical analysis and system design. In conflicts prevention, in order to prevent improper conflicts, I propose there should be a uniform legislation, offering an integrated protection of trade-names and trademarks. I propose reforming the existing registration and management system of trade-names and trademarks, implementing a unified national search firm for trade-names and a unified national search firm between trade-names and trademarks, and I propose that trade-names and trademarks shall not be registered if they violate prior rights. Innovation of this paper is as follows. In the light of some provinces and municipalities'legislations on rights of trade-names, referring the relevant legal provisions of ordinary trademarks, famous trademarks and well-known trademarks, I propose dividing trade-names into ordinary trade-names, provincial well-known trade-names, and national famous trade-names, and designing recognized approach for provincial famous trade-names, and national well-known trade-names. I propose unifying national industry classification standards and trademark classification that corresponding to each other under the premise categories, designing a new registration search system of trade-names and trademarks, in order to maximize to avoid conflicts between trade-names and trademarks. Specific ideas are as follows. Application for registration of new trade-names can't be approved if the new trade-name is identical or similar to provincial famous trade-names within the same industry; it also can't be approved if the new trade-name is identical or similar to national well-known trade-names range of different industries; and it also can't be approved if the new trade-name is identical or similar to the earlier provincial famous trademarks in the same category with the corresponding trademarks. In the context of different class, a new trade-name can't be identical or similar to the national well-known trademarks. The new application for registration of trademarks should not be approved, if the new trademark is identical or similar to provincial famous trade-names within the same category; it also should not be approved, if the new trademark is identical or similar to well-known trademarks in different categories.