Research On The Conflict And Solution Of Trademark Right And Name Right

In recent years,the conflict between trademark right and name right has intensified.The case of Jordan v.“Jordan” was typical.Due to the complexity of the case and the inadequacies of the current laws in China,the opinions of the theoretical and practical circles are not uniform.Therefore,it is necessary to research the conflict of such rights.This thesis is divided into five parts:The first part introduces the case of Jordan v.“Jordan”,and summarizes the main dispute point of the case,which is whether the registration of the disputed trademark “QIAODAN” damages Michael Jordan's prior name right.By sorting out the “IVERSON” case,the “MICHAEL JACKSON” case,and the “TRUMP” trademark case,it is found that when hearing such cases,there were differences in the judgment of the correspondence and reputation,which lead to different judgments in the similar cases.The second part is the analysis of the reasons for the conflict between trademark right and night right.To lay the foundation for the fourth part,the author tries to analysis and demonstrate from the three aspects,that is the overlapping of the trademark and the name in the constituent elements and functions,the particularity of the name right and the driving of commercial interests,and the legal basis for claiming the night right is more decentralized.The third part takes America,Britain,and Germany as examples to introduce the extraterritorial experiences in resolving conflict between trademark right and name right,specifically including the direct protection model of America,the right of publicity of Britain,and the unified rights protection model of Germany,and combines the cases to elaborate and evaluate the remedies under these three modes,to provide reference for the settlement of such rights conflicts in China.The fourth part is the focus of this paper,through the detail analysis of the typical cases,the author tries to put forward some methods to solve the conflict between the trademark right and the name right.Firstly,seek unity of the judicial standards,establish the stable correspondence,and adhere to the unity of objective and subjective.Secondly,the specific measures to solve such cases including but not limited to: clarify the scope of prior rights;establish a mandatory benefit sharing system;the flexible application of "adverse effects" clause;and refer to the right of publicity system of America,based on financial compensation,supplemented by cancellation etc..The fifth part is the conclusion,in addition to the improvement of legislation and administrative regulations,the enterprise shall abide by the principle of honesty and credit,make correct and reasonable trademark strategy,and actively carry out brand building;at the same time,the natural person especially celebrities also should strengthen the awareness of rights protection,and actively create the name trademark,nip in the bud.