On The Conflict Of Trademark And Trade Name Rights And Its Mechanisms

In recent years, cases concerning the conflict between trademark and trade name have been increased day by day with the development and competition of market economic. The conflict between trademark and trade name is the most obvious among the conflicts in the intellectual property rights domain. The inadequacy of legislations have confused the people both in academic domain and in practice domain. If this kind of conflict can't been settled, it will not only damage the consumer's benefit, but also disturb the market order. So it is necessary to research the question of the conflict between trademark and trade name, and in order to norm the market and to impulse intellectual properties' protect and healthy development., it is also necessary to norm the market order. This paper is mainly about the question how to resolve the conflict between trademark and trade name. In this paper, it adopts the research means of theory analysis compare research and demonstration analysis, and it firstly analyses the concept the character and the relationship of trademark and trade name, then it cards and analysis the forms and reasons of the conflict between trademark and trade name, and in the basis of introduce about the three theory and the modes in oversea how to resolve the conflict between trademark and trade name, it brings forward principles and measures of how to resolve the conflict between trademark and trade name.This paper includes five parts.The first part is the summarize of trademark right and trade name right. In this part, it analysis the meanings of trademark and trade name right, definite trade name right's character, and also compare similarities and differences between trademark and trade name. The author considers that trademark is a kind of title and sign to differentiate commodity and service; trade name and corporation name is the same concept, and is name to honor own in the business; character of trade name belongs to intellectual property rights because it has both attribute of personality right and property right and has character of intellectual property rights; trademark and trade name both have function to distinguish and identify, and the function has toward the same tendency, this tendency is the main reason of the conflict between trademark and trade name.The second part is about the forms and reasons of the conflict between trademark and trade name. In our country, forms of the conflict between trademark and trade name mainly includes four forms: register other's formerly registered trademark as corporation's name, register other's formerly checked in corporation's name as corporation's trademark , the conflict of across rights, the conflict of oversea unregistered famous trademark or trade name. The main reasons of the conflict between trademark and trade name includes the comparability of inscape and function between trademark and trade name, immateriality of right object, faultiness of law, abuse of manage system, drive of economy benefit.The third part is about theory basis of resolve the conflict between trademark and trade name. In this part, the author introduces and analyses confusion theory, association theory, anti- desalt theory of how to resolve the conflict between trademark and trade name. the author points out that confusion theory is not only as basic standard to protect trademark, but also as important theory basis to resolve the conflict between trademark and trade name. Both association theory and anti- desalt theory is to protect famous trademark and trade name. This three theory can provide theory direction to resolve the conflict between trademark and trade name in our country.The fourth part is about provision of how to resolve the conflict between trademark and trade name in other country and international pact. In this part the author review provision of how to resolve the conflict between trademark and trade name in France, Germany, England, United States, Canada, Japan, and so on. From these provision, the author sum up two modes of how to resolve the conflict between trademark and trade name in other country and international pact: one mode is to pay attention to beforehand prevent, the other is to pay attention to afterwards remediation. Two modes can offer suggestion for our country.The fifth part is about suggestion of how to perfect system to resolve the conflict between trademark and trade name. In this part the author firstly cards and analyses provision about how to resolve the conflict between trademark and trade name in our country, and points out that provision about how to resolve the conflict between trademark and trade name in our country is faultiness and must perfect system of how to resolve the conflict between trademark and trade name. In order to perfect system, the author firstly points out principia that should be obeyed in resolving the conflict between trademark and trade name, that is, we must obey formerly right, forbid confusion, cordiality and credit, benefit equilibrium. In the basis of these principia, the author brings forward suggestions to resolve the conflict between trademark and trade name: we must endow trade name with formerly rights; prescribe trade name's protect as intellectual property rights; perfect protection of trade name and promote law arrangement of trade name; reform the administration management mode of trade name; perfect spread protection of famous trademark and trade name; carry out the same body protect policy between trademark and trade name.