Reconsidering The Legal Issues Of Trademark Coexistence Under The Theory Of Confusion

The standard of trademark infringement had changed into a likelihood of confusion in the Trademark Law which had revised in 2013. This may have some impacts to the theory of trademarks coexistence: on the one hand, the trademark coexistence theory consider that the trademark can be coexist legally without a likelihood of confusion based on approximate established infringement situation. However, if the trademarks coexistence does not exist confusion, they obviously can coexist based on the standard of a likelihood of confusion. Actually this fact is essentially symbols coexistence. On the other hand, trademark coexistence may not be allowed when the confusion exists. As being a rational economic person, the subsequent user has no right to use the similar mark. In addition, under the premise of confusion still allowing trademarks to coexist will produce other practical problems in the future, and also does not solve the problem of trademark coexistence fundamentally.This article focuses on the facts of trademark coexistence, then analyzing the conflicts between the coexistence rights. Considering the extraterritorial theoretical research and judicial practices, we have to confirm that the extraterritorial conflict resolution system of trademarks coexistence do not apply to China's actual judicial practices because the different causes. While the traditional theory of trademarks coexistence and judicial practice have no necessity to resolve rights conflict. In the last part, the author tries to solve problems in theoretical confusion.In the prior registration system and the confusion tort theory, there is no space for the trademark coexistence especially in the situation of a likelihood of confusion. However there are two exceptions to the similarity trademark coexistence for the causes of specific historical reasons and forfeiting the right to revoke after five years since the day of obtaining the trademark.