Research On Trademark Honest Concurrent Use In China

Trademark honest concurrent use is a kind of defenses against trademarkinfringement. The legal basis for the concurrent use of two trademarks in conflict isthat through long-term honest use both of the trademarks have gained distinctivecharacter, consumers will not be confused with these two sources of goods/services.Trademark concurrent use is generated because of the rapid expansion anddevelopment of economy and Internet, which leads to the expansion of trading marketas well as the fact that the same mark is used simultaneously on multiple classes ofseveral kind of goods. Besides, sometimes the negligence of Trademark Office mayalso leads to the registration of same or similar trademarks in same or similar kinds ofgoods/services, making the trademark concurrent use occur now and then in real life.There have been several cases regarding trademark honest concurrent use inChina’s judicial practice. However, the criteria of judge varies and have beenrelatively hazy. In this paper, I start from the essence of trademark concurrent use, onthis basis, referring to the factors determining honest trademark concurrent use inforeign legislation and cases, I put forward factors determining honest trademarkconcurrent use and advices for improving the relevant legislation in Trademark Lawas well as establishing trademark concurrent use regime.Chapter I is an analysis of the judicial status the lack of criteria in China. Thispaper concludes several types of trademark concurrent use through cases and pointedout the flaws of scope of trademark concurrent use and the lack of legislation.Chapter II is a legal analysis of the trademark concurrent use. The essence of trademark concurrent use is the defense against trademark infringement. Based on thefairness, justice and the principle of good faith, Trademark concurrent use protect theinterests of both sides as well as the public.Chapter III is a demonstration the factors determining honest trademarkconcurrent use in foreign legislation and cases. Trademark concurrent use began in theU.S and the case law in western countries is relatively mature. When determininghonest concurrent use, the good faith of the user, the history and scope of use andlikelihood of confusion are both important factors. If the two sides signed a trademarkconcurrent use agreement, the court and Trademark Office also need to consider therelationship between trademark concurrent use agreement and likelihood of confusionas well as whether this agreement would harm the public interest.Chapter IV analyzes factors that determine trademark honest concurrent use inChina, combining with factors in foreign legislation and cases, this chapter proposeadvices for improving China’s legislation system. When determining honestconcurrent use, I advice that we should pull in the factors of length of time andgeographical scope of trademark use as well as likelihood of confusion. Furthermore,chapter IV propose advices for improving trademark registration and infringementsystem, Provisions regulating trademark concurrent use and relevant agreementshould be taken into legislation.Mainly through comparative studies and empirical research methods, this paper’sinnovation reflects in: First, the domestic research focused on the introduction oftrademark concurrent use but lacked critical thinking. This paper studies on theessence of the trademark concurrent use. Second, there is no uniform standard inChina’s judicial practice, while the relevant legislation is also absent. In this paper, aseries of domestic and international judicial practice typical cases are summarized,and on this basis make specific recommendations for improvement.