Disscussion On The Deficiency Of "the Double-track System" Of The Trademark Infringement Affirmation And Its Improvement

As one of the significant element of our "the Double-track System" intellectual property proiection, the administrations have been in charge of the administrative investigation, affirmation and punishment on the infringements. However, The Trademark Office and the Trademark Review and Adjudication Board, as set in the State Administration of Industry and Commerce, which is the administration in charge of the management of trademark infringement, lead to a different administrative protection system on trademarks compared with the ones on copyrights or patents. As the private-right attitude of trademark being acknowledged by the theoretical and practical circle, the possible conflicts between the affirmations from the SAIC and the ones from the Court turn out to be controversial. The author illustrates the defects of the "Double-track System" on the affirmation of trademark infringement based on the theories of administrative laws through the discussion on the issues such as the willful participation of the administrations due to the vague definition and stipulation on "public interests", the complexity of defining the administrative attitude of the trademark administrative protection, the procedure misunderstanding and the conflicts on the affirmation of trademark infringement due to the civil or administrative attitude of the litigations following the administrative protection. The author intends to discuss the merits and demerits of the "Double-track System" of trademark protection based on the practices of other countries and regions, and also introduces and analyzes the feasibilities of the establishment of a united trademark administration, the establishment of Trademark-specialized court, the trial system who unite reviews of civil, administrative and criminal IP cases as one as well as other measures, which to remove the power of trademark infringement affirmation from the SAIC. However, the aforementioned measures are not able to totally settle the conflicts on the affirmation on trademark infringement by the SAIC and the Court since they do not collect the power of affirmation from SAIC and the Court. In the end, the author is willing to bring in a new litigation mode similar to the criminal litigation and legislative suggestions on the former mode based on the newly modified<Trademark Law>, i.e. to clearly stipulate the "public interest" involved in the trademark laws and regulations and the conditions for the administrations to participate in the civil disputes, to authorize the SAIC to raise litigations against the parties who commit the infringements on trademark right as well as public interests, and to remove the power of affirmation on trademark infringements.