The Identification Of Prior Copyright Ownership In Trademark Case

Trademark cases often involve the identification of prior copyright ownership which has not an unified standard of the referee. In order to solve the problem mentioned above, the contention is mostly concentrated on the proving effectiveness of trademark registration certificate, copyright registration, and the standard of burden of proof. It is common that the similar cases have different sentences. This article compares several typical cases with this problem. Then This article points out the disputed points in practice in our country in order to find out the crux of the differences through theoretical analysis. The writer hopes to clarify the standard of the referee prior copyright ownership in trademark case in order to provide some references for the judicial practice in our country.The first chapter mainly compares and analyzes typical cases involving the identification prior copyright. The writer also concludes messages of the different cases. Then the writer concludes the differences about the problem mentioned above which leads to the different result in similar cases.It can be found that the bifurcation of prior copyright ownership in trademark cases mainly lies in: 1. the proving effective of separate trademark registration certificate. Some authorities think that the trademark registration certificate has the proving validity of the copyright ownership, but some authorities think that the signature in trademark registration certificate is not in the sense of a signature in copyright law, which does not have the proof effect of proving the copyright ownership. 2. the proving validity of copyright ownership of the prior trademark registration certificate and the copyright registration certificate. Some authorities think that if the registration time is later than the dispute or controversy trademarks(hereinafter referred to as "later copyright registration certificate"). If the creation time of the work, which is written in the copyright registration certificate, is earlier than the registration time of the dispute or controversy trademarks, combined with the first time to it can prove the prior copyright ownership combined with the trademark registration certificate, which means the preliminary proof of prior copyright. Some authorities think the prior trademark registration certificate and the later copyright registration certificate have fully and directly prove the prior copyright ownership. Some authorities deny the proving validity of prior trademark registration certificate and the later copyright registration. 3. the standard of proof burden. Some authorities think that the standard of proof burden of prior copyright ownership just follows the general provisions of the existing rules of procedure and evidence rules which is to rule out a reasonable doubt. But some authorities think that we need to increase the standard of proof burden in view of the particularity of the trademark case, namely the sufficient evidence is demanded, otherwise, it will overhead the legislation system of the trademark law.The second chapter is mainly aimed at systematically analyzing the differences of the reasons of the prior copyright ownership in trademark cases. Firstly, the writer briefly summarizes that the ambiguity of the legislation is the original cause of the difference of the prior copyright ownership in the trademark cases. Then, respectively introduces the direct cause of prior copyright ownership in trademark cases. The proving validity of the trademark registration certificate and copyright registration certificate needs to be acknowledged. And the standard of proof burden needs to be clear.In the third chapter, the writer puts forward a series of solutions respect to the identification of prior copyright ownership. Firstly, the court should enact the judicial explanation: 1. clear the proving validity of trademark registration certificate. First of all, the signature on the trademark registration certificate is not in the sense of a signature of copyright law, which does not have the proving validity of the copyright ownership; secondly, the registration time of the registered trademark registration certificate can act as the evidence of priority of the copyright ownership. 2. clear the standard of the proof burden. The standard of proof burden of the prior copyright ownership in trademark cases should not be too strict. We just need to provide the preliminary proof which can rule out a reasonable doubt. Secondly, in the absence of clear legislation, the court should release instructional cases in order to provide the reference to the trademark review and adjudication board and the relevant court. Thirdly, we need to strengthen the supervision of law enforcement officers and judicial officers. Since the judge will form inner conviction according to the basic system of evidences. And in the process of forming inner conviction has certain subjectivity and fuzziness, which is unable to form a unified standard. Therefore, we can only use outside force, namely, to strengthen the supervision of law enforcement officers and judicial officers and to restrain the law enforcement and the judiciary power at the same time which can make the judgment more just and reasonable.The author believes that the above suggestions can help identify the prior copyright ownership in trademark cases.The differences from this article’s conclusion to existing conclusion is that: 1. The author thinks that the proof validity of the prior copyright ownership of the trademark registration certificate cannot sweep generalization, instead, in different respects, for example, from the signature and registration time; 2. The author thinks that the proof validity of the copyright registration certificate is clear, not a cause of producing the difference of prior copyright ownership in trademark cases, and the real reason is that standard of the proof burden is not unified; 3. The author thinks that the identification of the process of proof standard the prior copyright ownership of trademark cases rely on heart to form inner convention which has subjectivity and uncertainty so that it can’t form an unified definite proof standard. We can strengthen supervision to maintain the judgments fair and reasonable. In addition, the standard of proof burden does not need to reach the sufficient level. We just need to reach the standard of ruling out a reasonable doubt. For example, after the holder of the claim completing the preliminary proof burden, the applicants of dissent or disputed trademark need to provide disproof, if the applicants cannot provide disproof, or insufficient disproof, the court should affirm the prior copyright ownership of the holder of the claim.