The Legal Settlement Of Trademark Vs. Trade Name

Refers to two kinds of rights conflict legal coexist, the rights of a legitimateexercise of restrict or prohibit a legitimate exercise of the right, but the law is not forthem the relationship between the accurate and clear definition of the resultingconflict and disharmony between two rights. In real life, often appear some enterpriseregistered with famous enterprises of the same name as a trademark, or thewell-known trademark as enterprise name, hitchhiking free-ride behavior, the right oftrademark and trade name rights conflict usually presents the prior right of trade nameand others in the conflict of trademark rights, or in the right of trade name andtrademark conflict form earlier by others, at the same time also appeared a license touse trademark but not permission to use the trade name, is used by the authorizedperson without permission of the trade name, because of a prior right of trade nameuse non-standard and famous trademark in the new situation such as rights conflict.The cause of trademark and trade name right conflict is various, trademark andtrade name similarity, trademark and trade name of elements of the invisibility of andregionality, shortage and absence of relevant legal norms and the economic interestsof the drive is the cause of right conflict. Trademark and trade name elements ofsimilarity is the direct cause of the conflict, the trademark and trade name andinvisibility of regionality is the internal cause of the conflict, the lack of relevant legalnorms and absence is the conflict of catalytic agent, the economic interests of thedriver is the root cause of the conflict.Draw lessons from international convention in solving the conflict of rights oftrademark and trade name right in protecting prior right or to the experience of theanti-unfair competition law to protect, in combination with the actual situation of theprotection of trademark and trade name, special field, the related law will protect theprior right through coordination and balance of interests as a solution to the conflict ofrights legal principles, and further perfect the protection of intellectual property rights system, carries on the integration of protection, establish a nationwide searchfirms and conflicting trademark and trade name retrieval system, introducing thetheory of right commensuration coordinate conflict of trademark and trade name right,introducing the theory of right commensuration coordinate conflict of trademark andtrade name right, formed by the appended in civil law system of trademark and tradename rights conflict of trademark and trade name right verification mechanism,enterprise integration protection countermeasures. This paper innovation place mainlyhas three points:First of all, the author argues that in establishing a nationwide search firms and theconflicting trademark and trade name retrieval system, gives the administration forindustry and commerce trademark and trade name right of substantive examination, inpractice, the rights conflict of trademark and trade name right part because of theadministrative department for some improper trademark or trade name rightauthorization, awarded to examine lax, occur on the same business logo for more thanthe market main body authorized by repeated phenomenon is also common occurance.Thus giving a substantive examination by the administrative organs of industry andcommerce authority will help the function of retrieval system.Second, the author argues that should bring in the theory of the rightcommensuration coordinate conflict of trademark and trade name right, in order torealize the balance of interests. Two belong to "legal" intellectual property rights,whether it is right of trade name or trademark rights are granted are generally need togo through the legal form, the occurrence of rights conflict is mostly based on theback right on prior right infringement. But "infringement" in the bottom right hasformed a relatively independent interests, and the independent interest and can’t be allinclusive, in a prior rights with pure protection if more prior right legal principles tosolve disputes, are in fact may constitute a serious unfair on the back right, share priorright will secure improper benefit, because the law of compulsory law became anaccomplice of the improper benefit; Prior right itself, on the other hand, before in the bottom right to generate and independent in the right, ignore the rights of a prioror after the infringement of the rights to inclusiveness prior rights is unfair. In thiscase, you need to pay attention to a prior rights and at the same time in the right, atthis time by a party to the other party’s interests after the loss to a certain amount ofcompensation, and to coordinate the interests of both sides, essentially the rationalityof the disputes, both parties, and the harmony in accomplishing the conflict of rightsThird, the author argues that can form in the appended in civil law system oftrademark and trade name right verification mechanism of rights conflict, although theplaintiff’s registered trademark, but after the long-term efforts and invest more makethe plaintiff’s registered trademark or with the trademark of the same or similarbusiness identity, or is after using the joint development and efforts to make thebusiness logo in a certain region has considerable influence and popularity, andcarrying a great commercial value, and the influence and popularity of thecommercial mark have been unable to specific classification using the share of effortsand their value, can consider to apply the appended in civil law system, follow theprinciple of honesty, fairness and efficiency, to dispute the first licensing agreement.If disputes both sides cannot reach an agreement, the people’s court may divisionbusiness identification to use the reference to the appended system, so that theinterests of the parties concerned to take into account.