Trademarks And Business Names Conflict

The conflict of interest has constantly happened between the trademarkand the corporate name. As a typical intellectual property, the trademarkseems theoretically independent from the corporate name which is categorizedas a right of person in the traditional civil law. However, in the judicialpractice, the later identification often infringes the right of theidentification registered earlier, because the two rights are bothestablished to differentiate the products and services of specific operatorfrom those of other operators and endow the products and services withparticular goodwill through so as to maximize the benefits from the customerswho choose such products and services. The trademark is different from the corporate name in following areas.1. The corporate name is attached to the business entity which markets theproducts or services while the trademark is marked on the specific products.2. The corporate name is under timeless protection while the tenure for atrademark is usually 10 years, which can be extended upon maturity, however.3. The protection of corporate name is applied in cases of fraudulentpersonation or other kinds of unfair competition but the protection oftrademark is more extensive, involving the protection in the case ofunintentional infringement. 4. The corporate name is more regional andusually only effective at the registration authority and the specific areaof jurisdiction while the trademark is a right effective nationwide. The conflicts between trademark and corporate name include: 1. using thetrademark or similar characters already registered by others to register thecorporate name; 2.using the corporate name or similar characters alreadyregistered by others to register the trademark; 3. using the trademark orsimilar characters already registered by others to register the corporate 3name while using the corporate name r similar characters already registeredby others to register the trademark. The conflict between trademark and corporate name is fundamentally rootedin the intention of capitalizing on the particular goodwill of others'products or services while avoiding the cost and risks of the registeredproprietor when creating the particular goodwill. The conflict is madepossible by the identity between trademark and corporate name in theidentifiability, identification target and constituents and theexclusiveness of both rights, while in China the conflict also results fromthe drawback of the registration rules for trademark and corporate name. The factors leading to the recognition of conflict between trademark andcorporate name are: 1. whether the identification registered later involvesthe evil intention; 2. the confusion between the identification registeredearlier and later. The confusion refers to the intention of creating consumermisunderstanding about the identification, namely, the use of theidentification registered later is sufficient to lead to mistaking it forthe identification registered earlier, otherwise, no conflict can berecognized. 3. the trademark needing protection must be a registered one,so the corporate name. China permits the use of unregistered trademark butdoes not grant the exclusiveness to it while totally prohibiting the use ofunregistered corporate name, so the conflict only happens between theregistered trademarks or corporate names. 4. the identification registeredearlier is not necessarily well-known for being well-known is not aprerequisite to validating a trademark or corporate name and it is not easyto determine the degree of being well-known. However the prior right is not unlimited and limitations include: 1. Theprior use refers to the right of the trademark owner who used the trademarkbefore it was registered by others to use the trademark continuously, andthe registered holder shall not prohibit the use of the trademark by the prior 4rig...