On The Trademark Infringement In The Advertising Of Product-Name Changes

In recent years,trademark infringements caused by the use of the registered trademarks of others in the advertising gradually increased,especially after the "Wong Lo Kat" series of cases took place,and the cases reported by the media during the judicial process.It attracts the public attention widely at home and abroad.Although in 2013,the concept of confusion has been included in the Trademark Law Amendment,but the standard of judging trademark infringement is controversial.For example,there are some disputes in practice on the judgment of trademark use behavior and the logical relationship between trademark approximation and confusion.In addition,because of the complexity of the use of trademark in advertising,it is difficult to determine the legal nature of the behavior.In this paper,the two cases— "Wanglaoji Renamed Case" and "Jieshui Renamed Case" —for example to analyze the trademark infringement behaviors which take place in the advertisings of changing product name.And try to clarify the boundary and conflict between trademark infringement and unfair competition in false propaganda,in order to provide theoretical reference for the judicial practice when similar cases appear and to improve the quality and efficiency of the judicial trial.The first part is about the introduction of the case "Wanglaoji renamed case" and the case "Jieshui renamed case".The main problem studied in this paper is also presented.First of all,the basic situation of the two cases is introduced,including the process of the case take place,the focus of dispute between the two parties and the final decision of the court.Then,after combining the focus of the two cases and the understanding of the defendant's behavior,put forward three core issues about the advertising behavior of changing product name.Finally,in the perspective of the plaintiff's claim and the court's decision,the reason will be analyzed that leads to the defendant's behavior different in the two cases.And express the core argument of this paper base on the above-mentioned reason.In the advertising of changing product name,if the new trademark and the original trademark both only refer to the commodities produced by the person who conduct propaganda,the advertising behavior belongs to the normal commercial propaganda,otherwise,it belongs to trademarkinfringement.In the second part,the behavior use is analyzed that in the propaganda of changing product name in terms of the similar commodity.First of all,when judge whether the behavior is the behavior of trademark use,the whole meaning of the advertisement must be analyzed.Through the analysis,the advertisement should have the following two meanings:First,the commodity identified by the new trademark and by original trademark must be produced and engaged by the same company.Second,from the date of advertising published,the original trademark will no longer be used to identify the commodity.And then,there is an analysis of the behavior of trademark use in the case "Wanglaoji renamed case" and the case "Jieshui renamed case".Besides,the legal consequence of behavior above is discussed.Third,by comparing the standard of trademark infringement under the legal system of our country,the conclusion is made that the behavior of advertising is trademark infringement,And according to the fact of the case "Jieshui renamed case" and the reasons for the court decision,It is concluded that the effective way to avoid the consequences of trademark infringement caused by the behavior of trademark use in the advertising of changing product name is to disclose the reason for changing name.Finally,the use of trademark behavior may lead consumers to confuse the source of goods.The third part is about the standard of trademark infringement under the legal system of our country.A comparative analysis is made in terms of the trademark use behavior in advertising of changing product name.First of all,the standards of trademark infringement between the United States and the European Union is analyzed.Then,combined with China's relevant legislations and judicial practice,three elements of trademark infringement under China's legal system is summarized in the following: First,the behavior of trademark use exists;Second,there is a correlation between the trademark used by the defendant and the registered trademark?In the fourth part,combined with the cases and legal provisions,the reason for the coincidence of the civil liability in the advertisement of changing product name,and the method to treat the similar cases are also discussed.First of all,through the comparing cases,the problem about the application of law in terms of the adjustment on the behavior,which is provided in China's Trademark Law and the Anti Unfair Competition Law.In the civil cases caused by propaganda in advertising that use trademark relevant to the trademark registered,most people sue to the court in the cause of action of trademark infringement and false propaganda.Secondly,the reason that the concurrence of tort liability caused in the similar cases,the rationality to seek relief from the court by the way that the litigant sue to the court in the cause of action of trademark infringement and false propaganda.