Study On Attaching Suitable Discriminative Mark

“Attaching suitable discriminative mark”， whose function ofbalancing the benefits of commercial signs’ users is severely overlooked,now is applied in so limited types. We should established a generallyapplied rule in the law relating commercial signs to relieve the tense.As to the legal character,“attaching suitable discriminative mark”,whose applied premise is existence of trademark infringement or unfairbehavior, is a civil liability. As a special measure regulating the useof commercial signs, the goal of “attaching suitable discriminativemark” is to avoid market confusion arising from the continuous use ofaccused infringer, essentially, that is to balancing the benefits ofcommercial sign’s owner, competitor and the consumers. In China thereis only one applied type about “attaching suitable discriminative mark”,that is when it existed concurrent area between two famous specific namesof product. Similarly, the regulation relating the defense of advanceduser in the Amendment’s draft of Trademark Law of PRC refers to thisproblem, but there also exist many limitations. Moreover, this problemis short of detailed analysis in judicial practice and learning. We shouldestablished the system of “attaching suitable discriminative mark” fromthe point of legal rule and established the general components, these are, (Ⅰ)the concurrence of accused sign and protected sign is probable tocause market confusion; and (Ⅱ)it is unsuitable to profit the continuoususe of accused sign. In the law of commercial sign, manydifficultly-resolving instances referring to trademark infringementand the behavior of unfair competition, such as where reserve confusionhappens, when revoked period is over and so on, can resolved by applying“attaching suitable discriminative mark”. Moreover, in judicialpractice we should explicit that the court may not apply it initiatively;the accused should attach a mark with suitable style, with the mark candistinguish the related sign; and it cannot be applied to limitation ofaction. Meanwhile the mark attached may be removed in some instances. TheTrademark Law and Unfair Competition Law can regulate a general articlerelating “attaching suitable discriminative mark” to give judicialpractice explicit guidance.In all, my whole thinking is the general article should be establishedin the law relating commercial sign with some types. In this article Iexpound and prove the components and demonstrate many explicit problemsabout the legal effect. This article has important value in theory andpractice. Also, it may bring some elicitation to the later research.