Research On Trademark Coexistence By Agreement

Since the emergence of trademark right, there has been a history of expansion. This phenomenon which pays too much attention to the protection of trademark right, to a certain extent, is not conducive to the diversified development of market entities. In recent years, situations that China's market entities solve trademark disputes by signing trademark coexistence agreement continue to increase, so that trademark coexistence by agreement enters the perspective of research. However, there is a difference of the subject between the trademark coexistence by agreement and the general civil behavior; therefore we can not judge the effect of trademark coexistence by agreement according to the effective elements of general civil behavior. Meanwhile, since trademark coexistence by agreement involves market division, due to the restrictions of competition or falling into the scope of anti-monopoly law, whether it is valid or not is still unknown. Furthermore, acquisition of trademark right includes three ways which are by use alone, by registration alone as well as by use and registration together, and the examination of trademark registration also includes comprehensive review, non-review and other mechanisms, so whether different ways of getting trademark right and different patterns of examining trademark registration influence the effectiveness of trademark coexistence by agreement is worth exploring. In addition, due to the dynamic nature of market and the expansion nature of market entities, the effectiveness of trademark coexistence by agreement for a given period of time is very short. When one party violates the trademark coexistence agreement, what kinds of relief right can be obtained by the other party is worth considering.Follow the above approach, this paper is divided into six parts. The first part gives the definition of trademark coexistence by agreement to clarify the relationship between trademark coexistence by agreement and the so-called trademark coexistence agreement, which will unify definition background for the exploration of the issue. At the same time, tease out the two value foundations for the trademark coexistence by agreement, that is the efficient justice characterized by autonomy of will and substantive justice characterized by sincerely use, so as to provide a theoretical basis and value basis for study.The second part, based on the study of China's judicial cases of trademark coexistence by agreement and the extensive reading of cases, sums up the different attitudes judicial institutions when facing trademark coexistence by agreement and the judicial predicament caused by different judicial attitudes. Finally, deeply explore the aforementioned judicial phenomenon, so as to find out the reasons caused the judicial predicament of trademark coexistence by agreement in our country and provide a realistic basis for the construction and perfection of our country's system of trademark coexistence by agreement.The third part mainly examines the experience of extraterritorial laws. In order to balance the trademark use by market entities and balance trademark right and market competition, two typical modes of the effectiveness of trademark coexistence by agreement are developed in extraterritorial laws, one is the Britain mode, as the representative of absolute effectiveness, and the other is American mode, as the representative of relative effectiveness. However, the chose of effectiveness mode is related to the different legal culture of different countries, so this part will make a deep research on the Britain and American patterns, so as to provide the basis of comparison law for the construction and perfection of the trademark coexistence by agreement.The fourth part sums up the effective elements of trademark coexistence by agreement on the basis of previous research. Trademark coexistence by agreement is the same with general civil behavior in the nature, so autonomy of will is the basic effective element. And then, the justice of trademark protection comes from the recognition of trademark, so the effective elements should contain bona fide use. Finally, since trademark is related to market competition, the competition order becomes the element of public interests which can deny its effectiveness. Whether consumer confusion can deny the effectiveness of trademark coexistence by agreement or not should depend on the specific circumstances.The fifth part points out that in order to carry out the benign interaction between valid trademark coexistence by agreement and trademark registration, a perfect system of trademark registration is required to provide systematic support for trademark coexistence by agreement. Firstly, make legislative norms for the trademark coexistence by agreement to get rid of the obstacles of non-discretionary administrative power. Secondly, stipulate "cooling off period" and filing system of trademark coexistence by agreement, release the model of agreement, so as to guide and public trademark coexistence by agreement.The sixth part is rooted in the dynamic of trademark coexistence by agreement. When one party does not satisfy the current situation of the agreement and uses the trademark beyond the safe harbor provided in the agreement, the other party shall propose action for breach of contract or tort according to different situations. Under the different ways of remedy, trademark coexistence agreements signed before play different roles.