The Rights Of Trademark And Trade Name Rights Conflict

As the most representatively recognizable and commercial identification, trade name and trade mark are both the products when commodity economy developed to a certain extent. However, since it lacks sufficient awareness in China, Chinese legislation does not value the differences between trade name and corporate name for a long time. The appellation of "trade name" appears also in few laws and regulations etc. and trade name is usually to be mixed with corporate name in practice. The conflicts between the rights of corporate name and the rights of trade mark are, in essence, the conflicts between trade name rights and trade mark rights. From the worldwide legislation practice, most countries regard trade name rights as an independent right and protect it as an industrial property right with trade mark right and patent right.The conflict types between trade mark rights and trade name rights include: (1)the conflicts in trade name tendency of trade mark and trade mark tendency of trade name; (2)the conflict of cross rights;(3)the conflict cross different commodities and services caused by the protection of well-known marks;(4)the conflict caused by well-known trade name;(5)the conflict related to foreign unregistered famous marks and trade name. The restricted theory of conflict sticks to tort theory and denies the conflicts amongst rights when they are in legal forms, but the general theory of conflict regards the conflict caused by "vicious lift" as a conflict type of intellectual property rights. The general theory of conflict values the settlement of issues and is in favor of the realization of formal justice of law, helping people set up the concept of the supremacy of law and the consciousness of exercising rights promptly.The main reasons of the conflict between trade mark right and trade name right include the intrinsic reasons like invisibility nature, time nature and territory nature of intellectual property etc. and extrinsic reasons like the discrepancy of legal systems etc. The economic reasons of the conflict between trade mark right and trade name right are the profit-pursuit nature of commercial participants and the scarcity nature of resources. The intrinsic reasons lead to the fact that legislation cannot eliminate the rights conflict no matter how it is consummate. Legislation only can strive to regulate and resolve the existing conflicts and make a balance amongst different rights.This paper analyzes the conflict components through the analysis of subject, object, subjective aspect and objective aspect of conflict. It then makes a conclusion that (l)subjects have a same object simultaneously and such object has same or similar compositions are the basic component of conflict;(2)subjective fault is the essential component of assuming tort responsibilities rather than the necessary component of constituting conflicts or confirming tort;(3) the confusion between trade mark and trade name not only includes the direct confusion that public maybe mix the sources of commodities or services, but also includes the indirect confusion that people maybe believe two companies have certain relationships in business. In the process of handling and resolving conflicts, the application of preceding right principle has been prone to relativism. All of the principles resolving conflicts have respective reasonableness but also have certain limitations when they are applied individually.This paper believes that the settlement of resolving the conflicts of intellectual property rights should not only notice their particularities, but also notice that intellectual property rights are private rights and to resolve their conflicts should return to the basic structure of civil law to find the cornerstone of theories and principles of settlement. At last, based on the foregoing analysis and discussion, this paper provides advices to the improvement of legislation and legal system on resolving the conflict between trade mark right and trade name right.This paper is divided into five chapters except for introduction and conclusion.Chapter one focuses on differentiation and analysis of trade name and trade name right. This part is the basis of the paper. Considering that there have been plentiful theories about trade mark and trade mark right and it lacks researches about trade name right, this paper gives special emphasis to the analysis of this right. It analyzes the concept, origin, function of trade name and the relationship between trade name and trade mark. Furthermore, this paper believes that trade name right has double attributes of personal right and property right and should belong to intellectual property rights. Since the similarity in attribute and application between trade mark and trade name, some trade marks and trade names are mixed up and consumers are confused with them. Consequently, this leads to the conflict of trade mark right and trade name right.Chapter two focuses on the manifestation and reasons of the conflict between trade mark right and trade name right. This part summarizes the common rule from the general theories of intellectual property conflicts first, then introduces and analyzes some major types of manifestation of the conflict between trade mark right and trade name right, analyzes the reasons of causing such conflict from the aspects of right nature, system and the root of benefit and analyzes the issues in the process of legislation and implementation.Chapter three focuses on analysis of components of the conflict between trade mark right and trade name right. This part analyzes the legislation both in China and abroad and the components of conflict from the subject, object, subjective aspect and objective aspect.Chapter four focuses on the application of preceding right principle in the conflict between trade mark right and trade name right. This chapter discusses the preceding right principle in emphasis and analyzes the value, meaning and practice of this principle in the conflict between trade mark right and trade name right trough the analysis of the concept and scope of preceding right principle and the legislation and practice of this principle in other countries and regions.Chapter five focuses on the principles and approaches of the conflict settlement between trade mark right and trade name right. This chapter summarizes the theories in foregoing chapters and provides settlement principles of resolving conflicts. It then further analyzes relevant legislation in China and provides advices to the improvement of legislation and legal system on resolving the conflict between trade mark right and trade name right.