Conflict Of Trademark And Trade Name Rights And Their Solutions

Trademark is a symbol used to distinguish one product or service from others while trade name is a symbol used to distinguish one trade entity from the others. Since both of them have similar nature as commercial symbols, it's not easy to distinguish trademark from trade name. While such trademarks or trade names with legal forms are attached to different subjects, a series of interest conflicts occur, which is the conflict between trademark and trade name. It's intractable for practitioners and theorists to resolve such conflict in the present time. Based on the current status of trademark and trade name protection in China, the author will make an unprecedented analysis on the solution of the conflict with the method of comparison in the dissertation. In this paper, it firstly analyses the concept , the character and the relationship of trademark and trade name, then it analyses the forms and reasons of the conflict between trademark and trade name, and on the basis of introducing about the methods of how to resolve the conflict between trademark and trade name in oversea, it brings forward principles and measures of how to resolve the conflict between trademark and trade name in our country.This paper has five chapters.Chapter 1: the right of trademark and trade name, which is the foundation of the article. Herein, discussing the conceptions, origins, functions and relations of trademark and trade name, the author holds that it is the similarity in nature and function between them that leads to ambiguity between some trademarks with some trade names, to confusion among customers and then to such conflict between them.Chapter 2: forms and causes of conflict. Herein, the author discusses three forms of conflict, First, the conflict consists in preoccupied registered trademark with delayed registered trade name; Second , preoccupied registered trade name with delayed registered trademark; Third, because the trade name of some enterprises were not in accordance with their trademarks, one registered other's trademark as his own trade name, and occupied other's registered trade name as his own trademark at the same time. The main reasons of the conflict between trademark and trade name includes the protection for the right of trade name is not enough; laws relating to trademark and that relating to trade name are out of line; current regulations for settling disputes arising from trademark right and the right of trade name, including related judicial explanations, are too ambiguous to be applied.Chapter 3: the criterion that used for dealing with the conflict between trade name and trademark around main capitalist countries, Taiwan of P. R. C. and some international acts was reviewed. From my own point, there were two modes in legislative issue within different countries and regions: First, making use of the mechanism about prior right to preventing the conflict in advance; secondly, using the counter-unfair competition mechanism to remedying it afterwards.Chapter 4: the regulations and problems consist in the current legislative system of our country when solving the conflict were analyzed. In this chapter the author analyses the provision about how to resolve the conflict between trademark and trade name in our country, and points out that provision is faulty, including: intangibility of intellectual property; trademark is highly similar to trade name; there is much flaw in administrative system; economic interests is the main driving force.Chapter 5: suggestions for legislation. Based on the actual situation of China and relevant perfect regulations of other countries and areas, the author gives some suggestions on developing the legal systems of trademark and trade name in China. The author firstly points out the principles that should be obeyed in resolving the conflict between trademark and trade name, that is, we must obey former right, forbid confusion, cordiality and credit, benefit equilibrium. On the basis of these principles, the author brings forward suggestions to resolve the conflict between trademark and trade name: we must endow trade name with former rights; improve the examination and searching system for trademark and trade name; prescribe the protection of trade name as intellectual property rights; perfect spread protection of famous trade name; carry out the same body protect policy between trademark and trade name.