The Constitutive Requirements Of Trademark Coexistence

The instances of trademark coexistence that happened in recent years around the world,provide the opportunity for Chinese lawmakers and judges to clarify their thinking andrecognize trademark’s basic function and the theory of trademark infringement. In theadjudications entered by Chinese judicial organ and administrative organ, themisunderstanding that approximate trademarks bring out trademark infringement, has been inthe leading role. They ignored the objectivity and legitimacy of trademark coexistence. Basedon researching the legislative cases and examples of trademark coexistence around the world,we can find that under certain conditions, two approximate trademark can be used on theidentical or similar goods at the same time. These particular conditions are refers to thetrademark coexistence’s subjective factor and objective factor.The basis of legitimacy is the only way to get protection by benefit balance principle andfair principle, when defendant’s trademark interests has no legal basis. Subjective goodwill isinevitably demand to the basis of legitimacy. It requires defendant must choose and usetrademark without any purpose of unfair competition.Objective factor is mainly refers to eliminate factors of confusion and trademark usedegree requirements. Eliminate factors of confusion mainly include differently using andsigning trademark coexistence agreement. Differently using divides into identifyingcoexistence before and after ones. The ways of differently using mainly have add tags, dividethe using range and so on. Trademark coexistence agreement occurs contract effectivenesswhen it must have specific terms. As an evidence, it only has relative effectiveness ineliminating more possibility of confusion. When identify the possibility of confusion, we stillshould consider with other relevant factors. When solve trademark coexistence disputes, inaddition to investigate the effectiveness of trademark coexistence agreement, we shall putgreat importance on the liability for breach of contract.Defendant’s mark needs a higher degree use to get the difference from reference mark.The popularity of defendant’s mark will form in the process of using. So when defendant’smark obtain significance by using, it often has a certain reputation. Actual sales must be thefirst factor when investigate trademark use degree. At the same time, we must consider otherfactors flexibly, such as commodity’s characteristics and sales quantity.Research the constitutive requirements of trademark coexistence will help us torecognize the essence of trademark confusion, and help to correct the misunderstanding oftrademark confusion theory in our lawmakers and judges’s mind, and provide certain reference value for perfecting our legal regulation, and leaving a living space for trademarkcoexistence.