Research On Trademark Coexistence Legal Questions

Trademark coexistence refers to identical or similar trademarks on thesame or similar goods belonging to different enterprises legitimatelycoexist. Trademark coexistence is unfamiliar in China, however, it iscommon in trademark laws of many countries and active in internationaltrademark legal practice. This article expounds the meaning of trademarkcoexistence, demonstrates its legitimacy, on the basis of the comparativelystudy of main country’s legislations and practices as well as China’s actualconditions, tries to structure China’s trademark coexistence system.The first chapter generally discusses the meaning, generation and sortsof trademark coexistence. Trademark coexistence refers to identical orsimilar trademarks on the same or similar goods belonging to differententerprises legitimately coexist. The generation of trademark coexistencecomes from its finiteness and scarcity as well as the truth that trademarkright is private right, however it soars because economic developmentshocks trademark registration system and trademark’s territoriality. Basedon the coexistence object, trademark coexistence can be divided intocoexistence between registered trademarks, registered trademarks andunregistered trademarks, unregistered trademarks; based on the coexistencefoundation, it can be divided into legal coexistence and consultativecoexistence.The second chapter deeply analyzes the legitimacy of trademarkcoexistence. Confusion theory is the basic norm of trademark infringementand also the basic theory premise of trademark coexistence. Trademarkcoexistence corresponds with justice and efficiency, which are both value goal of the law, and corresponds with the balance of interest principal oftrademark law.The third chapter analyzes legal trademark coexistence throughcomparative studying foreign trademark laws and practices. Legaltrademark coexistence has its form of similar trademarks’ co-registration,the right of prior use of trademark, the right of intervening use of trademarkand trademark coexistence because of exceeding the time limit. All thecountries lay emphasis on getting rid of confusion to maintain order oftrademark coexistence. Different countries show different attitudes on theeffect of trademark coexistence agreements in registering procedures.The forth chapter discusses current legislative and judicial situation ofChina, exploring building China’s trademark coexistence system. Thissystem should build on confusion theory, realize with the form of legalcoexistence and consultative coexistence. So China’s trademark law shouldexplicitly stipulate confusion theory. Regarding on legal coexistence, bringin the right of prior use of trademark and improve trademark revokingsystem. Regarding on consultative coexistence, the authority should notonly encourage signing coexistence agreement, accept its effect rationally,but also pay attention to regulate its content and performance in order toprotect public interest.Trademark is a special right which is relevant with private interest andpublic interest. In order to construct a scientific system of trademarkcoexistence, among different kinds of “trademark coexistence”, the lawshould provide room for similar trademark’s legitimate coexistence, clearthe way of trademark coexisting, explicitly stipulate different types oftrademark coexistence, and regulate this coexistence effectively.