Conflict And Balance Of Interests On The Procedures Involving The Authorization And Confirmation Of Trademark Rights

Procedures Involving the Authorization and Confirmation of Trademark Rights were involved in the contradiction between private interests and public interests. Though the "bad influence" clause of the first item(8) of paragraph 1 of article 10 contains public interests in Trademark Law, in specific performance, because of the ambiguity of legislation and the lack of criterion, the judge's handlings of the dispute in the judicial practice are inconsistent. When we carry on the judicial application in such a case, we should find a method from the origin of the Trademark Law and seek the support of basic theory of the Trademark Law, to crack the problem of the judicial application.In this thesis, firstly, we review the “WeChat” registered trademark administrative disputes and summarize its controversial focuses. Secondly, toward to the main disputes, such as public interests and "bad influence", we will analysis these one by one carefully to make the case clear. Then we will analysis the main bone of contention of the “WeChat” case following the primary theories of Trademark Law. Lastly, we provide a method to solve the problem like this to the plaintiff and defendant, and try to find a better law basis to judge the case.The first part is the introduction of the case. By fully understanding “WeChat” registered trademark administrative dispute, we sum up the main dispute focus of this case: 1.Whether the case includes public interests? If so, what kind of public interests are included? And when public interests start being? Is it the time of the application for trademark registration or administrative ruling or judgment of the day? 2. Whether there are any conflicts between the trademark applicant's wanting interests and user group's stable cognitive about interests? Are there any conflicts between legal predictability and consumers' survival of confusion? How to balance the relations of various kinds of interests and trade-off various kinds of interests, when they are conflicting? 3. How to explain the article 10 of the trademark law about" bad influence? Can we take the act of using as the mark of judging "bad influence"? Whether a trademark which has bad influence any body can't use? Is "bad influence" clause involved in public interests?The second part is the legal analysis about issues disputed point. Based on analyzing of various issues, combining with relevant theory and judicial practice, and comparing laws of other countries, we get the standards that judging each issue. Indeed in the approval procedure of authorized trademarks requires public interest considerations, and the timing of the judgment of public interest should be the date on which the review. Stable cognitive interests of user group are after the market entry of a kind of goods together with other legal and marketing under the action of formation, and they are not the interests that Trademark Law protecting, so they are not conflicting with the trademark applicant's wanting interests; What's more, about consumers' survival from confusion in the public interest, the Trademark Law has a comprehensive design, so we can't solve the problem of public mistake in tort relief programs, and on the trademark registration procedure. "Bad influence" clause should be presented and summarized as norms, using is the precondition of adverse effects, and a trademark which has a bad influence is not nobody can use.The third part is about theoretical level. First, this dissertation introduces the research methods to solve the problem of Trademark Law, namely the return to the basic theory of trademark, and the use of appropriate legal principles and rules. Then, trademark distinctiveness is breakthrough, differentiating the trademark of significance for the source and of significance for the difference. Argument according to the different methods, the trademarks for either inherent significance or obtained significant are based on sources of significance. "WeChat" brand belongs to the implied trademark, has the intrinsic significance, the source is significant. At the same time, when "WeChat" brand is used in practically, for the applicant, it is already relatively indifferent, that is no more significant of difference.In the fourth part,we provide a new law basis of the administrative registration dispute cases about "We Chat" brand on the basis of the analysis of the above. I suggest quoting the article 8 of the trademark law, which is to introduce the appended thought using traditional theory of civil law for reference. In the aspect of enterprise, the enterprise should complete the' trademark strategy and strengthen the protection of trademark.