Research On Legal Source Demurrer In Trademark Infringement

with social and economic development, the trademark markets increasingly active, which are bound to make the growing phenomenon of trademark infringement. From the point of view of the circulation of goods, it is mainly used the trademark owners- the manufacturers- the sellers of the three chain links inflow of consumers. Therefore, if the owners of the trademark want to make infringement be stopped, they often proceed from the manufacturers or sellers of these two links. But in the market transaction process, under the background of the continuous development of production technology, the means and methods of infringement of Malicious manufacturers are increasingly diverse and hidden, which gives the trademark owner's rights caused some problems. Thus, in order to achieve the purpose of rights. trademark prosecution often located in the terminal part of the flow of the chain of sellers. For sellers, since located in the terminal of the chain,trade information obtained is not perfect, therefore, countries have introduced legal source demurrer system in the "Trademark Law", If the sellers in the purchase subjective provide a manufacturer's information on goodwill, objectively to provide a manufacturer's information, they can be exempt from liability. Introduction of the system under consideration is based on the introduction of the balance of interests of all parties, which have made great effectiveness in the judicial practice. However, the current legal system and judicial interpretation does not have a recognized uniform standard, so each court in adjudicating such cases, discretion is relatively large, show a certain degree of "arbitrariness", which caused some risks refer to the sellers defend. This is obviously not conducive to the flow of goods, nor to balance the interests of all parties, which will hinder the development of commodity economy. Especially for the openly and actively international market, a large number of foreign products into domestic sales, our country in the international market also tend to act as a seller role, if national courts do not have a relatively reasonable uniform standard, our country in the international market transactions will inevitably place a relatively difficult situation. Therefore, in order to give the system better suited for the modest force., the author from the second paragraph of Article 64 of the current "Trademark Law", combined with related cases, analyzed the trademark infringement legal source demurrer system. Specifically, the main part of this paper is divided into four parts.The first part focuses on the introduction of the background and the relevant theoretical foundation of the legal source demurrer system. the author objective describes the basis of existing rules, discusses its theoretical basis form bona fide acquisition and the balance of interests as well as f subjective and objective criteria. In addition, the author mainly combines the background of negotiations with the West in 2001 when China entered the WTO and the legislation cases abroad, believes it that the introduction of the system should be required from time to time. Fanally, the author conducts a horizontal comparison analysis and finds it out there has an uncoordinated standards in the Intellectual Property Law.The second part, the author analyzes the cases during the system is applicable in China. First, the author analyzes from the court, the trademark owner, seller three areas, introduces a series of questions of the system in the "Trademark Law" due to lack of standards. Then, mainly analyses the elements of the system binding with the verdict. This part mainly discuss two aspects from a subjective "do not know" and the objective "legal source".in the aspect of subjective, the author believe that should omprehensive accreditate and mainly from two aspects of neither subjective intention nor objective fault; For the objective aspects, the author combines of the counter-evidence, thought that the court should in conjunction with the specific objective and comprehensive adjudicate cases and can not be fixed on a rigid standard chain of evidence identification. Finally, the author analyzes the chance and the responsibility of the demurrer, and points it out that the standards taken by the Court today is a rigorous trial, finds that the Court only rule on rigid criteria and be specified from the case, justice with mercy can make a rational judge. While on the liability, the author analyzes the reasonable costs. the author analysis the theory and tends sellers to not bear it if there has a establishment demurrer.The last part, the author mainly analyzes the mindset of judge in judicial cases, and gives advices to its shortcomings, First, the author sums up with the judicial case and points it out that the judge always adopted strict "syllogism" thinking mode in such cases today, and analyzes the causes and consequences of it. Then, the author analyzes the influence of the mode of thinking on the court, trademark holders and sellers with the legislative purpose, points it out that there has a conflict with the legislative purpose to balance the interests and build a harmonious social order. Finally, the author provides two recommendations for judges in thinking and method for alleviating the conflict. In terms of ideas, the author advise it that the judge should adhere to the law during the procedure, thus rational and economic judgment; in specific methods, the author recommends judges should be flexible in distinguishing between the litigant and should be strict in subjectively recognized standards. Additionally, in order to make a referee which in line with common sense and social habits, the referee basis should avoid "one size fits all" and adhere to the "high probability" standard.