Judicialization Of The Conflict Between Trademark Rights And Trade Name Rights

The conflict between trademark right and trade name right has been a long history, but so far, there are still different views on the judicial resolution of the conflict between the right of trademark and trade name. The reason is that there are differences in the understanding of the nature of trademark right and trade name right, and there are different opinions about the probable consequence, form and essence of the conflict between trademark right and trade name right. There is a variety of forms and causes for the conflict between trademark right and trade name right, according to which it is necessary to choose different judicial resolve methods. To this end, it is necessary to make a detailed analysis on the form and the cause of the conflict between these two rights, so as to follow the right principles, to choose the reasonable methods, and to make appropriate judicial decisions finally. Based on the above purposes, this thesis is divided into four parts, except the introduction and the conclusion, in which the relevant issues mentioned above were discussed.In the first part, the different forms of conflict between trademark right and trade name right are sorted out according to the factors as follows:whether trademark or trade name is registered, whether trademark or trade name is well known, whether some historical reasons should be taken into consideration, and whether there is subjective fault of the market parties. In the second part, this thesis analyzes the causes of the conflict between trademark right and trade name right from the aspects of the intrinsic properties of trademark and trade name, the market influence, the administrative management and the honesty of the market parties. On this basis, it is talked about what the harm of this conflict is and why the judicial resolution is necessary. In the third part, there is discussion about the judicial procedural and substantive principles which should be followed in the judicial process for resolving the conflict between trademark right and trade name right, so as to lay a solid foundation for fair and impartial justice. The last part is mainly about how to make decision by different thought and different methods according to different forms of conflict between trademark right and trade name right. And there are two other issues are discussed in this part. One is how to determine the responsibility which is the critical issue of judicial decision. Another is how to use persuasive language appropriately in the judicial decision in some special cases.