The Recognition Standard Of Coexistence Of Trademarks And Its Legal Perfection

The discussion of trademark coexistence in China has been relatively mature,and there is basically a mainstream academic view on the trademark coexistence.However,when the Trademark Law was revised in 2013,the trademark coexistence system was not included in the discussion.Although the relevant provisions have been made on the priority right,invalidation and revocation,the perfection of these systems is beneficial to the trademark coexistence system,it is nothing more than scratching the surface for the real establishment of the trademark coexistence system,and the solution to this phenomenon cannot be fundamentally helpful.Looking back over the past few years,cases relating to trademark coexistence are frequent.From the first Crocodile case,Liangzi case to Goubuli(Go Believe)case,as well as the case of Midea and Midea Jensen,in the trial of these cases,the judge xhausted his wisdom and made use of legal principles and legal rules to ensure fairness and justice in the judgment of cases.However,if looking longer ahead,and looking at the present with a vision of the future,if the trademark coexistence system is established,these problems can be easily solved.In the trial of most trademark coexistence cases,the principle of confusion is emphasized.The basic way of judgment is that if it does not cause confusion,then it will certainly not infringe the legal interest of the trademark owners,and then deduce the non-infringement,so the trademark can form coexistence.However,through the study of China’s judicial cases,relevant provisions of World Intellectual PropertyOrganization and other foreign countries,it is found that the confusion principle is very important in the case of trademark coexistence,but it is not a necessary element.In other words,even if there is a confusing situation,it can also constitute the trademark coexistence.If trademark registration pays more attention to procedural justice,as a trade-off,trademark coexistence pays more attention to substantive justice.Of course,this conclusion is different from the current mainstream view.The mainstream view generally believes that trademark coexistence is the use of the same or similar trademark on the same or similar commodity,but does not lead to confusion.Because in the face of substantive justice,we need more consideration on the subjective intentions of the two sides,especially the alleged infringer,the history used by both parties and the market used by both parties,rather than simply judging whether there is any confusion in the subjective sense.In this paper,it is believed that trademark coexistence must be tolerant of confusion,even if it cannot,it can tolerate a certain degree of confusion.As for some views that tolerating confusion will infringe on the interests of consumers,this paper believes that it can coexist after stipulating the change of trademarks,such as adding corresponding significant markers or trademarks and using it in combination with other symbols of the enterprise.After establishing the ideological standard that the trademark can coexist even if confusion,we should further study the identification standard of trademark coexistence on this basis,for example,the actual use of the trademark used by the later user,whether the use of the trademark has subjective malice,whether the two parties have signed a trademark coexistence agreement,the substantial contribution of the user to the saliency of the trademark,the related cognition of consumers and the specific historical reasons.These standards will also play a great role in the trial of trademark coexistence cases.For subjective intention,this paper holds that the mainstream view of knowing the facts is too harsh,if the view of intentional harm is adopted,although the judicial cost increases slightly,it will be more in line with the substantively fairness and justice.On the legislative level,this paper tries to give some suggestions to the Trademark Law.This paper argues that the trademark coexistence system should beused throughout the trademark registration,trademark use,trademark infringement and trademark removal,and the spirit of trademark coexistence should be embedded in the whole Trademark Law,so that the trademark coexistence and other provisions of the Trademark Law can be perfectly integrated.For example,the juridical power and degree of trademark registration shall be strengthened.For instance,at the beginning of the trademark registration,if the examiner finds that the relevant subject has registered the same or similar trademark on the same or similar commodity and has been rejected,the registrant shall enjoy the corresponding juridical relief right.For example,if a trademark coexistence agreement has been signed with the existing subject,and the attachment clearly distinguishes the logo,then it can be registered on this basis.It can be stated specifically that "when the trademark registrant applies to register,the Trademark Office shall not approve the registration if a similar trademark has been registered on the same or similar commodity,but it can be registered if the registrant obtains a trademark coexistence agreement on the basis of agreement through consultations with the right holder and indicates that the corresponding logo is added,and will not cause confusion." For instance,perfecting the revision of trademark removal right by amending the article 45 of the Trademark Law to “for the registered trademark,which violates the provisions of article 13.2 and 13.3,article 15,article 16.1,article 30,article 31,article 32,the prior right or interested party may request the Trademark Review and Adjudication Board to declare that the registered trademark is invalid within five years from the date of registration of the registered trademark.If it has not been applied for more than five years,the trademark may be judged to coexist.For malicious registration,the well-known trademark owner is not subject to five years’ time limit.But ten years later,those who still do not advocate rights will lose their rights,except for malicious registrants who are exceptionally inactive in the use of trademarks.” For example,the corresponding provisions of the trademark coexistence and the trademark coexistence agreement can be increased.In particular cases,the trademark coexistence can be judged by using the same or similar trademark in the same or similar goods or services without infringing on the normal operation of other enterprises,but the following factors should be examined: 1.Whether the specific use location of the trademark,the market coverage and the use time is more than 5 years;2.Whether the use of the trademark will constitute consumers’ misrecognition and have adverse effects;3.Whether there is any agreement on the trademark coexistence between the two parties before;4.Whether the use of the trademark is harmful to the reputation of others.For those who have signed a trademark coexistence agreement,the specific contents of the trademark coexistence agreement shall be fully respected,but the trademark coexistence agreement shall include but not limited to the following contents: 1.The parties to the agreement shall operate within their original scope and shall not expand their business scope without authorization;2.The market shall be delimited in advance for the areas that are not operated by both parties;3.Other packages or markings except the trademarks should be kept as different as possible;4.The two parties shall enumerate the reasons and objective facts for not constituting the confusion;5.The two parties should try their best to avoid confusion and continue their efforts.