The Analysis On Trademark Concurrent Use

In1979, the conclusions of the McGregor case that Identical or similar mark does notnecessarily lead to confusion made a groundbreaking. Reflected from trademark infringement,it proved the same or similar trademark may coexist. In other words, the same or similartrademark has an function that can identify more than one source of goods or services. Thefunction is the fundamental of concurrent trademark use system. Concurrent trademark use isan exception of trademark right. It is a fairness system that protects the goodwill of bona fidetrademark user. Although its scope is strictly limited, concurrent trademark use system is anessential part of trademark law and is also the reflection of the phenomenon that frequentlyprevalent in the real life. The concurrent use of trademark, which stems from Tea Rose-Rectanus Doctrine in the case law of United States, is one of the systems that protect goodfaith user of trademark. The anticipating target of the concurrent use of trademark is pursuingfairness and order. The crucial elements of the concurrent use of trademark include thegeographic remoteness use and the good faith of junior user. With the arrival of Internet ageand the integration of market economy, this system varies: trademark geographic areas of userange from the physical separation of the region to the overlapping cyberspace, and good faithis replaced no malicious with unawareness. The priority use of trademark differs fromconcurrent use of trademark. Focusing on convergence with the trademark registration system,it is necessary to introduce and make clear the legal structure of concurrent use of trademarksystem.This paper is divided into seven parts.The first part focuses on the situations of concurrent trademark use and summed up thenature and characterizations of concurrent trademark use with the method of the phenomenonto the essence. At the same time,, card evolution of concurrent trademark use throughfocusing on the historical development of concurrent trademark use in order to precipitationoriginal rules of concurrent trademark useThe second part shows the legislation of concurrent trademark use. Besides analyzesociety, economy, policy and culture comprehensively which affect the appearance and development of concurrent trademark use, carding the history of evolution of concurrenttrademark use should also compare the legislation. Through analysis the provisions of theTrademark Law of the United States, Germany, Japan, Australia, it can delineate the scope ofapplication of concurrent trademark use.Third part lies to discourse the embodied value--fairness and efficiency. As the close linksbetween the Trademark Law and the Unfair Competition Law, the two homologousrelationships is mainly reflected in the regulation of the fake and free-rider. When concurrenttrademark use does not break the regulation against fake and free-rider and not causeconsumer confusion, the later trademark user, which uses trademark with good faith in aremote area market, should be protected in order to uphold the fairness and justice of law.Through economic analysis, granting the later user trademark right will improve theefficiency of whole society.The fourth part primarily describes essential elements of concurrent trademark use systemwhich contains the same or a similar mark, the same or similar goods/services, regionalrestrictions of concurrent trademark use and subjection of good faith trademark user. The coreof this part is the regional restrictions and subjection. The remote regional trademark use mustbe used in a different physical area, whose judgment standard includes market penetration, thescope of market reputation and the natural expansion area. The subjective good faith needs toexpand the meaning that subjective of the later trademark use should be not aware ormalicious.The fifth part is to examine the comprehensiveness of current trademark law system in orderto provide institutional support for concurrent trademark use system. A criterion for trademarkinfringement is that using the same or similar trademark on the same or similar goods/servicescauses confusion. It proves the possibility of the same or similar trademark coexist frominfringement levels, and also offer an chance to create concurrent trademark use systemwhose the elements contains the same or similar trademark on the same or similargoods/services. Trademark registration only has public effectiveness of ownership of rightsand also provides a space for the trademark concurrent use. In addition, concurrent trademark use focus on the protection of the interests of the later trademark user. Given negating theeffect of trademark registration, it entitles the later trademark user to use the same or similartrademark in the original area.The sixth section focuses on recommendations to our trademark legislation. Our judicialpractice has been recognized concurrent trademark use based on the theory of coexistencegrowth; however the current trademark law does not lay down such a system. Judicialinterpretation and practice has adopted likelihood of confusion as the criteria of infringement,but the legislation clearly more effective certain trademark concurrent use as an infringementdefense. Trademark legislation needs to set out the core elements of trademark concurrent usesystem, so as to provide a clear legal basis for judicial practice. The registration process of theU.S. trademark concurrent use can be limited reference.Part VII is the conclusion that throws a thought-provoking proposition. The principle of"Tea Rose-Rectanus" and the rule laid down by "Dawn Donut" case are whether suit tocontinue to apply and how to judge must will be continue to argue under the Internet age.