Research On Issues Of Generic Name Identification

Generic name identification has always been a highly controversial issue in thefield of trademark law. It is also a thorny problem in judicial practice. Manytrademark disputes involving generic name identification is generally encounteredlong period trial and heard by high-level court. Some of these cases even have beenarraigned by Supreme People’s Court. This fully explained the controversy of thisissue. At same time, the results recognized by different administration sectors andcourts are different in judicial practice. The legal basis applied by differentadministration sectors and courts are also different. This paper is exactly dedicated toexplore the feasible scheme to solve aforementioned issue based on the currentsituation, by learning from foreign judicial experience and academic theory. Theauthor also tries to provide some reference and inspiration for developing a bettersolution to this problem in judicial practice by writing this paper.This thesis discussed the problem of generic name identification by threesections:Section one technically analyzed and defined the concept of generic name. Thefirst quarter of this section summarized the understanding and definition on genericname from academic, administrative and judicial areas. The second quarter introducedthe understanding and definition on generic name from foreign legislative, judicialand academic areas. The third quarter analyzed the nature and legal significance ofgeneric name on the basis of the first and second quarters, and through this analysis clearly a reasonable definition of generic name.Section two analyzed present situation and problems of generic namesidentification in our country. The first quarter of this section focused on the subjectand procedure to recognize generic name. The second quarter discussed the legislativepresent situation of generic name identification standard and new breakthroughs andmain problems on generic name identification standards in judicial practice.Section three focused on the suggestion to improve the generic name recognitionsystem in our country. The first quarter of this section clarified the relation betweenadministrative identification subject and judicial identification subject. At same time,through drawing lessons from the theoretical achievements and related provisions ofwell-known trademark identification, the author clearly pointed out that theidentification of generic name should follow the principle of harmonization ofStandards and passive identification. The second quarter of this section clarified thegeneral principles, general standards and specific reference factors on generic nameidentification aiming at the problems raised in section two. Firstly, this quarterclarified the cognitive subject to recognize generic name through discuss relevantpublic principal and principle of interest balance. The cognition state of relevantpublic should be the fundamental basis to recognize a certain mark constitutes genericname or not in principal. But considering the need to protect public interests and keepfair competition in the market, the cognition state of relevant producers andproprietors also can be used as main basis. Secondly, this quarter discussed thegeneral standards to recognize generic name, i.e. geographical scope standard andtime standard. The geographical scope standard to recognize generic name principallyrequest to be generic nationwide, but under exceptional circumstances a certain markwhich is generic in a specific area also should be recognize as generic name. Torecognize a certain mark is generic name or not should be on basis of the fact ofreviewing in principal. But considering the public interest and protection of trademarkright, expectation should be allowed. Thirdly, this quarter discussed the specificreference factors on generic name identification and clarified the effectiveness of eachreference factor.