Research On Non-independence Of Trademark Quality Function

Trademarks are the tools of commodity exchange,and have the identification function of goods and services.The function of the trademark is the attribute and significance of the trademark as an organic part of the social system of commodity exchange.It is the basic motive for the legal protection of the trademark.Academics generally believe that the trademark function includes identification function,quality function and advertising function.For the status of quality function,there are two views in the in the academic field: independence and dependency.The theoretical controversy eventually leads to the unification of judicial practice,"PEKO" case,a typical case in 2015 about intellectual property,was first time judged according to the trademark quality function independently.However,the traditional trademark protection is based on the dual system of confusion or dilution.The court holds that the trademark quality function has independent status,whether it is innovation or biased.Under this background,this paper chooses to study the legal status of the quality function.After sorting out the relationship between identification function and quality function;then analyzing many cases at home and abroad,come to the quality function will lead to consumer confusion caused by the conclusion;last,interpreting the so-called trademark quality assurance function terms to correct the misunderstanding of these legal provisions,the research conclude that the quality function does not have the independent status,and on this basis,analysis the legal protection of quality function in China.The first chapter mainly summarizes the controversial focus of the non-independence of the trademark quality function.There are two main views on the legal status of quality function,some consider that it has an independent status,and others think that it does not have an independent status;this paper holds that the trademark quality function does not have an independent status,and sorts out the main reasons for the independent status of trademark quality function.The second chapter mainly discusses the non-independence of the trademark quality function,which is also the mainly part of this study.First of all,sort out the logical relationship between the quality function and the identification function.Then,analyze the cases from both home and abroad;the changes in the quality of goods will lead to consumer confusion.Finally,the article on the quality function of the trademark law found that the quality control of the goods through the public power and the quality control under the other departmental law is not the quality function in the sense of the trademark law.The quality assurance function has no legal basis in our country.The conclusion is that the trademark quality function does not have independence and its function performance shall be based on the identification function.The third chapter analyzes the factors and the applicable law of infringement caused by the damage to quality function.First of all,Through case studies,the following four factors should taken into account when there is infringement caused by the damage to quality function: the subjective intent of the perpetrator,the consequences of the act,the adequacy of the information disclosure and whether it is conform to the business practice.Secondly,analyze the four legal applications in the judicial practices;the infringement caused by the damage to the quality function should be applied to the provision of confusion rather than the miscellaneous provision.