Research On Conflicts Between Right Of Trademark And Right Of Trade Name

Trade mark and trade name are both trade signs that have identities. Both of them areimportant intangible asset and the carriers of creditworthiness and goodwill of enterprises.Consumers tend to be confused when their component elements are the same or similar.Right conflict take place very easily when the right of trade mark and trade name belong todifferent enterprises. Recent years, with the development of economic and increasingdegree of competition, conflicts of the right of trade mark and trade name occuredfrequently. The benefit of obligees and the legal right of consumers have been invaded. Thefair and orderly maket order have been destroyed. So soluting the conflit of the right oftrade mark and trade name is our most urgent problem. But because of the complexity ofthe right conflict’s cause and the shortage of domestic legislation, practical operations todeal with these lind of issues get more difficult. This paper mainly embarks from theanalysis of intellectual property rights angle, research the basic theory of trade mark andtrade name, by the method of comparative analysis, investigate different countries’ rules oftheir convention, trademark law, unfair competition law, compare with domestic legislation,look for the law now in force, by these ways to find the best machanism for solving theconflict of these two rights.In the past, most research of the conflict between the two tendto be enbarked from the trade mark right protecting angle. In this paper, research would bebased on the trade name protecting.At the present time, the definition of trade name is notexplicit, the characteristic of trade name is still in dispute. These caused the inequality ofstatus of trade name right and trade mark right. It’s obviously contrary to the principle offairness only the trade mark right get protected when the coflict take place.Besides, mostresearchers just took completeness of legislation into account if they were in that kind oftrouble in the past. While the completeness of legislation is benefit to prevent andmitigate the conflicts and the legislation might give the principle to solve the problem, itcan not possibly offer all rules for every complicated situation. Under civil law system, the certainty of the written law make the statutes unchangeable once been published, which atthe same time leads to the lags. Since the change of law would weaken the force thereinthat make the law uncertainty, people would lost guidance which may result in unexpectedoutcomes in law-abiding and law authority.According to the dilemma, I suggest that theflexible way should be adopted, that is to say, each judge depends on the explanation tolegal principles and the discretion based on variety cases would be the remarkable process.This article is divided into three parts to discuss the conflict between the right oftrademark and the right of trade name.The first part describe a general idea of the two rights. As the foundation of the wholearticle, the definition of trademark, the right of trade of trademark,trade name and the rightof trade name are been explained separately. Trademark and trade name are been comparedin characters, process of application, range of effect, term limits, market access,components and protections within legal system. Currently the trade name is been definedblurred, for example, there is no exactly distinction among "trade name","firm" and"enterprise name", which bring in confusion somehow.Also, the statutes do not make thecharacter,status and protection of trade name clearly. Fortunately， the article will discussthe questions below that define trade name right as intellectual property explicitly and thesimilar functions which make the conflicts absolutely between trademark and trade names.The second part makes basic analysis on right conflicts between trademark and tradename. Beginning with theoretical basis of right conflicts, the point that conflict in broadersense should be taken into account in right conflicts of intellectual property. Then thedefinition of conflict between right of trademark and trade name is been concluded and therelationship between this kind of conflicts and other torts is been made clear.Also, theexpression of conflict between the two rights is been summarized with supporting cases.Finally, the reasons why we have these conflicts are been raised and meanwhile, bringingup the following solutions.Then we concerns on the legislative comparison between rightsof trademark and trade name in the world wide view.Firstly,the article elaborate theprotection, nature of trademark right, range of prior right, principle to determine conflictsas well as dispute settlement mechanism in international conventions and legal system ofother countries. Secondly, legislation of our country currently in effect is been discussedand the legislation defect is been proposed. Finally, we sum up the problem we face whenwe try to overcome obstacles and resolve conflicts. The third part is my analysis and suggestion of the conflict’s solution. It’s mainly beexplored from three aspects of fundamental principle, legislation improvement and judicialequity.On the legislation, trade name right should be brought into the protection categoryof intellectual property unambiguous, and conditionally put on the list according to the sortwhen dividing range of right of precedence.At the same time, it indicate the issue that inour country the famous tradename protection is still a blank space, elaborates the way offamous tradename’s recognition and protection, and put forward the idea of introducingUnited States anti-dilution theory into our country.At last, equitable method should betaken to solve the conflict flexibly in the administration of Justice, conditionally exploitand protect the principle of prior rights, prohibit confusion principle and balancing ofinterests.At the trial judges can distinguish different types of conflict, apply differentmeasure of settlement, draw into new method as difference between identificationmechanism, compensation mechanism and compulsory license mechanism to deal withdispute.