The Conflict Of Trademark And Trade Name And Solution

Intellectual property is an achievement ownership from human beings’mental labor, which authorizes people who meet special conditions to have exclusive right, according to the law from country to country. It is limited in time and district. Trademark and trade name are both intellectual properties with property character, and play important rolls in today’s circumstances of market economy in China as well. Trademark is a sign to separate articles or service from different operators. However, trade name is the way to call a enterprise, just like the same way we call a person. As far as I know, not only do trademark and trade name have relationship, but also have difference from each other. On the one hand, both trademark and trade name can tell different article operators or service providers. Trademark is attached to trade name, which is usually used and registered after the operator getting its subject qualification. It is frequent to see trademark and trade name show up together on products. Trade mark can be used as trade name after registered by the Administration of Industry and Commerce. Trade name also can be used as trademark if applied to the Trademark Office. To consumers, they have similar function in identifying the origin and quality. On the other hand, since trademark and trade name are superintended by different departments, they do not have much onnection in rights enjoying with each other. Inscapes for trademark and rade name are also with big difference. Therefore, conflicts between hese two become prominent day by day. I used to work at an intellectual)roperty agency for three years. Cases of occupying others’trade name as one’s trademark, or seizing some famous trademark as the trade name for me’s new company, were common to meet with. Both trademark and rade name are identification. They should have no contradiction to each other. But recently, some operators have no running purposes but ntentions to grab others profit by hitchhiking the famous, which disrupts the market and harms the interests of consumers a lot. It is time to study from the very beginning of trademark and trade name and work out practical schemes, in order to ensure a smooth development in the intellectual property of our country.There are totally five parts in this paper. The first one is started by a case I experienced. After that, definitions on trademark and trade name, introductions of the registration system for both trademark and trade name in our country and connotation of the conflict between those two would be brought out one by one.The second part is emphasized on the types and reasons for the conflict between trademark and trade name. The conflicts here are classified into three types by different angles, such as the order and region of rights’happening, the complex relationship between well-known trademark and famous trade name. As to the reasons for the conflicts, are analyzed from subject status, object status and content. The situation of the conflicts is unoptimistic at the present time.The third part comes to the manifestation and the harm of the conflict between trademark and trade name. To register other’s trademark as one’s own trade name, or to use other’s trade name as one’s own trademark, are two main manifestations of the conflict. Due to the existence of the conflict, the legitimate rights of the operators and consumers are threatened, which also has a bad influence on the fair competition order and the progress of our society.In the part of four, the author tried to sort the standard between trademark and trade name via concerned International agreement and oversea law. To state the shortage of our law, which can’t prevent any confliction effectively and how to handle this confiiction properly, it also influenced in judicial practice.The fifth part is related to the Resolving Proposal. It is divided to Law perfection, prevention in advance and solution afterwards. Law perfection contains trademark law complement and other concerned laws; prevention in advance could establish the double cross query mechanism of trademark and trade name. It also found the unified national registration query mechanism, and works out the unified scope of business and register scope. To solve the conflict has already happened, it should explicit the basic principle and judicial relieve, which as the core for the two conflicting. This will be benefit for the conflicting between trademark and trade name.