| Trademark Law of the People’s Republic of China(2013 Revision) has made significant revisions on the priority right, invalidation of registered trademarks and revocation, while the question of “trademark coexistence” is left unsolved. But in the judicial practice of our country there are a large number of "trademark coexistence" cases and their related problems. Because our country adopts the system of trademark registration of trademark, the trademark law protection on too much emphasis on and ignored the rights conflict coexist, in the past for a long time in our country administrative organ and the judicial organs to give full protection to the trademark, even thinking that a registered trademark can eliminate all registered in the approximate trademark application, once approximate, judging from the physical properties of the same or two trademarks at the same time appear in the market will certainly cause consumer confusion, and dismiss the trademark application or trademark infringement. This view has been eased after the crocodile trademark case. Original blockbuster lactose and Singapore crocodile case, though both sides form and sound similar trademarks, registered by the similar good, but it is able to distinguish and not ordinary consumers will confuse, thus it can be seen on the premise of not confusion. Co-existence of approximate trademark has a certain space. Trademark rights holders are actively seeking the effective ways to implement trademark coexistence, in order to avoid infringement litigation, and coexistence of trademark agreement can achieve this purpose. But because our country was once thought to the infringement, until 2010, the Supreme Court by "crocodile" case citing does not constitute a confounding approximation to determine two trademarks’ legal coexistence.Coexistence of trademarks in foreign markets is a very common phenomenon, in the United States, Britain and Japan and other countries and regions have relatively perfect system of trademark coexistence. But due to the coexistence of incomplete legislation of trademark in China, administrative organs and judicial organs in reality attitude to coexistence agreement is not clear during the trademark review, and the current situation of the market economy. The fact is that trademark coexistence demands more and more widely, resulting in the judicial practice, both phase authorized trademarks and trademark right verification phase, the different organs in the face of all sorts of multifarious cases could not be in accordance with a unified judgment and analysis on the guiding principles, and even the same case in the hands of different organs would be of entirely different conclusions. It is not conducive to the effective development of the market, also in opposition to the legislation intention of the trademark law, the key problems in China may be focus too much on the trademark registration system maintenance and the blow for trademark infringement, but not law of trademark coexistence given directly or reference standards; at the same time, they do not clarify confused coexistence trademark with the current trademark, trademark infringement, the relationship between the means. It is a long way to go to establish trademark coexistence system.Both the previous and new “Trademark Law of the People’s Republic of China”, “regulations on the implementation of the trademark law of the People’s Republic of China” or the relevant judicial interpretations, the trademark review and hearing standards do not directly regulate the trademark law of coexistence, or anything that can be adopted directly in law enforcement or can work as reference or rely on the provisions of the judicial process. Therefore, in the process of trademark authorization or approval, once appeared on the same or similar goods or services to apply for registration of trademark registration which has been approved with others or preliminary approval of trademark identical with or similar to, general trademark office will reject the application and make no publication in China; or others in order to protect the prior right and prevent malicious registration with principles and spirit thereof, in the first trial announcement period demur; or to have successfully registered trademark to the identity of the holder of the first, requesting the trademark review and adjudication board revoke the registered trademark. On October 14, 2014, the people’s supreme court issued a “Supreme People’s Court On Some Issues Of Trademark Authorization Made By The Administrative Courts Regulations(Draft)”, becoming effective from October 14, 2014 to November 15, 2014.In article 20 of the judicial interpretation made breakthrough to coexist agreement provisions, “[coexistence agreement] the trademark review and adjudication board citing and prior cited trademark conflict decided to dismiss the application for trademark registration, the registration shall not be approved or order a registered trademark shall be declared void, if in the litigation stage, citing trademark obligee and litigation trademark holder reach an agreement, agreeing on the trademark registration, the people’s court may permit”. It suggests that the people’s court review of trademark may involve the reference of coexistence agreement of parties, when they judge whether trademark coexistence will cause confusion or mistake.Recently, judicial practices, especially after Liangzi trademark case, there have been a part of the courts giving trademark coexistence a positive and supportive attitude. For example, the Beijing municipal people’s higher court accepted “UGG” trademark case. If the trademark holder himself think coexistence with no adverse impact on its, unless there is other evidence which can fully prove that there is confusion, otherwise, the court should respect the independent disciplinary right of the parties, and on the premise of not damage the interests of consumers, to allow the trademark coexistence.By contrast, coexistence of trademark legislation is quite perfect overseas, such as the United States the fourth paragraph of article II of the Lanham Act provides for concurrent registration of the necessary conditions to, in the commercial use of the trademark by the applicant after prior registration must precede “the earliest filing date or any registered issuance date.” The coordination of Member State legislation on December 21, 1988 of the first directive of the Council of the European Communities article Ninth “loss of rights due to tolerance” regulation, and Germany the existing law on the protection of trademarks and other symbols also have similar provisions. United Kingdom the seventh article of the trademark law in force establishes use cases apply the relative simultaneously in good faith reasons. Japan trademark law 32 nd article provides has “right of prior using of trademark”, and China Taiwan trademark law 30 th article third paragraph provides: “in others trademark registered applications recently, goodwill using same or approximate of trademark and same or similar of merchandise or service, not bound by others trademark of effectiveness”, has provides and restricted directly or indirectly on trademark coexistence situation.The confusion theory should be the theoretical premise of trademark coexistence. Trademark coexistence is the gap between “similar trademark” and “trademark infringement”, and this gap is due to trademark infringement confusion in the establishment of the theory. We can’t get the ultimate goal of trademark coexistence as a trademark and registered trademark coexistence, and we can only say that does not constitute a trademark infringement of the legitimate state, so the trademark coexistence should conform to the legal value of fairness. The purpose of this paper is to put forward some suggestions for the identification and regulation of trademark coexistence by listing determining factors, put forward several key factors, including the actual situation, market structure, subjective intention, trademark coexistence agreements and related consumer awareness of trademark use, and put forward the logic level, the various factors that will influence each other, such as the subjective intention that can be derived from the expression and several other factors and specific to the actual trademark coexistence. According to the different trademark coexistence, the identified factors may also be different between the internal relationship and mutual influence, identification method and considering. At the legislative level, the “Trademark Law”, “Trademark Law Implementing Regulations” and “trademark examination standard” also give some suggestions, including trademark registration requirements and standards of review, likelihood of confusion of trademark examination, evidence judgment when introducing auxiliary system, improving the prior trademark user requesting for invalidation application and establishment of trademark coexistence agreements system.This paper consists of five chapters:The first chapter introduces the basic concepts of trademark coexistence, and the meaning of trademark in trademark coexistence with other concepts introduced the main reasons of the trademark coexistence, and the coexistence of the basic classification, discussing that the legitimacy of the trademark existing in China, shall be in accordance with the confusion theory, for the further classification of trademark coexistence discussed below, and points out the necessity of the study on trademark coexistence.The second chapter mainly analyzes the present situation of China’s trademark coexistence, including trademark coexistence related legislation and judicial practice, in order to lead our trademark coexistence of legislation and judicial standards thereof. This chapter further refers to trademark coexistence of domestic and foreign legislation, which has carried on the comparative analysis, through the analysis of America, Europe and some Asian countries and trademark coexistence of related legislation, and China’s legislation on trademark coexistence of deficiency of law enforcement in judicial practice, pointing out the problems and the current situation thereof.The third chapter is the core chapters of this paper, on the premise of confusion theory, by analysis of trademark coexistence considerations, based on various factors and then into the specific circumstances applied, sorting out the logic of concurrent trademark case.The forth chapter is the deepening of the content, the combination of theory and practice, in view of China’s trademark coexistence of the legislative and judicial which gives some preliminary suggestions, hoping to provide the development of trademark coexistence system a little enlightenment. |
PDF Full Text Request