The Analysis Of Exclusive Right To Use A Registered Trademark Called "Dao Huaxiang" Case

Trademark is used to distinguish the source of goods and services, and generic name is used to distinguish goods categories. Generic name of the goods can not be registered as trademark goods, even if be registered as a trademark will face the fate of the revoked, and trademark holder can’t prohibit others from using generic names in rational. In the disputes of brand and generic names, the cognizance of generic names usually is the key to the case, and it would affect the vital interests of the parties.Through to analyzing the case that the dispute about the use of a registered trademark of "Dao Huaxiang", this article based on the focus of dispute, analyze the recognition and the rational use of generic names deeply with the help of relevant theories and judicial practice. At last, this article come to the conclusion that "Dao Huaxiang" is the generic name goods, and the behavior of company called Wu Chang belongs to the rational use. Specifically, defining the connotation of the generic names should start from itself characteristics of the goods, and if we want to define the connotation of the generic names deeply, we would combine with the generic names of definition and various factors in the case. For example, the most important feature of "Dao Huaxiang" is the generality in the Wu Chang region. In terms of generic names standards, geographical scope and time node can not treat as the same time, also it is not invariable, and it should be based on the principles of the relevant public judgment and the public interest principle. Fair use is not precondition for the cognizance of generic names, but it is not mean that generic names are free to use, especially when the trademark also has the force of law involved, general name of the user should be more carefully. However, in judicial practice, it is still a difficult problem that how to maintain reasonable boundaries of the trademark rights and the right to use generic names, which requires the judicial determination of generic names to improve and promote the balance of private rights and public rights.