Restrictions On Trademark Rights Of Time-Honored Brands In Trade Names

Time-honored brand,as an endorsement of cultural and commodity goodwill,conceals great commercial value.The problems of legal protection of time-honored brand come from the historical inheritance and vicissitude as well as the market competition brought by the unique commercial value of it with Chinese characteristics.It takes quite a long time to cast time-honored brand,whether it is the Chinese time-honored brand or the local one recognition have corresponding requirements on the number of years.In the course of historical changes,the development of time-honored brand has also produced many variables.The successors of the founders of time-honored brand and those who actually participated in the management of time-honored brand claim the right to the ownership of the it.The diversification of the subjects of claim also makes the problem of the ownership of time-honored brand complicated,which causes the disputes of the ownership of time-honored brand cases.In view of this,the author takes the case of "Tongdefu" trademark infringement and unfair competition as the Angle of view,studies the restriction of trademark right of time-honored brands in trade names,and analyzes and discusses the problems of the correlation false publicity of time-honored brands that exceed the restrictions and determining the fair use scope of time-honored brands that do not exceed the restrictions.The first part,the case review,introduces the basic case of the "Tongdefu" case,and sums up the problem of the case: First,whether Chengdu Tongdefu Company constitutes a false propaganda of the association of time-honored brand;Second,Yu Xiaohua,Chongqing Tongdefu Company's reasonable use of time-honored brand of "Tongdefu".The second part studies the legal attributes of time-honored brand.Through exploring the complex and vague legal attributes of the old brand from the three levels of normative text,theory and judicial practice,and discriminating time-honored brand and other related intellectual property concepts,the legal connotation of time-honored brand is further interpreted.The third part studies the judgment of the time-honored brand related false propaganda,which is divided into three levels:(1)the research on the definition of false propaganda behavior.From the legislative level and the theoretical circle's definition and recognition of false propaganda,the author puts forward his own understanding of the concept of false propaganda behavior: the market operators make false or misleading commercial propaganda on their goods and services,which is enough to mislead most irrational consumer groups to purchase and seize unfair competitive advantages.(2)To study the identification of time-honored brand related false propaganda,we put forward our own understanding from three aspects:(1)the behavior mode of false propaganda,and put forward that the essence of false propaganda is to lead people to misunderstanding,and analyze and discuss the two behavior modes of misleading propaganda and non-misleading false propaganda.(2)The essential characteristics of false propaganda,pointing out that false propaganda has non-directional characteristics,which is the key to identify false propaganda.(3)The behavior results of false propaganda should be judged according to the general duty of care of the general consumers;the principle of overall observation;the principle of comparing the main parts;the principle of isolated observation at different times and places as the criterion,and the restrictive conditions of "misleading" consequences caused by two different behavior modes of action and omission should be analyzed and elaborated.(3)To analyze whether Chengdu Tongdefu Company have false propaganda behavior in this case,this paper makes a concrete analysis from three aspects of false propaganda identification,and draws the conclusion that the plaintiff's labeling behavior on the product packaging constitutes false propaganda,but its propaganda behavior on the website constitutes confusing behavior.The fourth part,the definition of the reasonable use scope of time-honored brand,is divided into four levels:(1)Analyzing and sorting out similar cases,through sorting out and summarizing the general problems in the judicial practice of similar typical cases,it concludes three problems in the cases: first,the historical origin is the important basis for the judges to consider when deciding;second,the court cognizance.After the parties have historical origins,there are still some restrictions on the scope of their use of old names;third,the result of the judgment pursues judicial balance.(2)The definition with "historical origin".From the influence of the historical origin,the judicial practice for the definition of "history" in the two aspects of analysis,put forward the practice court the intergenerational inheritance and the objective management succession shall be defined as two kinds of standards of "have historical origin",and apply in the conflict,should focus on the latter point of view,and thus for the case of the rationality of the definition of "historical origin" were analyzed,It is concluded that it is reasonable for the court to determine that the defendant and Tongdefu Shop Zhai are of historical origin,However,the court should review the fact that the plaintiff claims that it and the time-honored brand "Tongdefu" are based on objective process inheritance and goodwill inheritance.If it can be determined that there is an objective business inheritance between the plaintiff and Tongdefu Shop Zhai,the conclusion of this historical continuity should be affirmed.(3)Analyse the specific considerations of registering time-honored brand as individual industrial and commercial household names and enterprise names.Starting from the application of the principle of good faith,and from the connotation of the principle of good faith and the concrete consideration of the principle of good faith in the determination of unfair competition,this paper argues that the principle of good faith in the context of anti-unfair competition law is embodied by recognized commercial morality,and that the rationality of the actor's behavior should be analyzed to infer whether it has subjective malice.Determine whether their actions violate the recognized business ethics to judge whether their actions violate the principle of good faith,and further draw the conclusion that the registration of the defendant in this case does not constitute unfair competition.(4)To study the identification of tort of using time-honored brand as individual industrial and commercial household name and enterprise name.This paper elaborates on the identification of trademark infringement,analyses the elements of trademark infringement and the two aspects of "standardized use" and "prominent use",and points out that "standardized use" and "prominent use" are only differences in degree but not in essence.As long as the actors' use behavior conforms to the objective path of trademark infringement,they should be recognized as infringing registered trademarks.The exclusive right further draws the conclusion that the defendant's use of the full name of the enterprise in product packaging constitutes an infringement on the exclusive right of the plaintiff's registered trademark,but the act of marking "ode to virtue of Tongdefu" on the product packaging is not infringing.