Study On Establishment Of The Judgment Rule Of Trademark Coexistence Cases In China

In recent years, the court recognized the cases of physical similar trademarks to coexist in the market are in growing numbers, but because of differences in the facts and the judgment use different principles, there is no uniform standard. I collected some cases of trademark coexistence and try to find out the general principle by classifying the various causes of trademark coexist cases.U.S. Supreme Court described in Hanover Star Milling Co. V. Cases in the common law rule Metcalf geographical coexistence is still used as the basis for the right to use the trademark on the coexistence of the common law, established the determination trademark coexistence "Tea Rose" rule that long-range use and good use of the rules;.. later, according to United Drug Co v Theodore Rectanus Co new situations arise amended proposal drawn "Tea Rose-R" rule, indicating the region’s only the actual use of the mark was worth protecting. The rule has been using for centuries, foreign scholars wrote that with the advent of Internet technology and the information age, trademark coexistence referee rule has been challenged: the distance between the reality of the physical differences in the concept of distance is huge, well-intentioned proof becomes more and more difficult, so the U.S. trademark coexistence referee rule on the need for further research.In the second part the author demonstrates the legislation can not resolve the problem of coexistence of trademark, some sort of trademark coexistence third basic theory problem, on this basis, through the establishment of a fourth part to balance between the interests of rights holders and consumers trademark referee system, the general idea is to take the dichotomy: the case for trademark coexistence long ago because of geographical, historical and other factors are generally not regarded as infringement, whether the agreement by the parties to choose coexistence, voluntary coexistence, supplemented by the registrant quality monitoring obligations, product quality insurance, product liability and other systems margin, unwilling to coexist start buyout assets or trademarks transformation mechanisms; the recent trademark coexistence cases even possible future coexistence generally take a negative attitude, you can start by third parties and Trademark Office buyout assets or trademarks transformation mechanism, the same or similar trademarks to retain only one right person.