Research On The Identification Of Generic Name In Trademark Infringement

Trademark infringement is a conflict between private rights and public rights,which concerns the interests of the trademark owner and the public.In some trademark infringement cases,the infringer always denies the infringement by identifying the registered trademark as a generic name.Therefore,the identification which decides whether a registered trademark is a generic name has become the key to judge this kind of case.It decides whether the use of registered trademarks by a third party is fair use or trademark infringement.However,there is no legislation on the identification of generic name,and also no unified standard of identification in judicial practice.This leads to the phenomenon of different judgments in similar cases in reality.By taking the case of “Daohuaxiang” trademark infringement as an example,this paper analyzes the focus of controversy sequentially,so as to solve the complicated problems of identifying generic name in trademark infringement cases and defend the legal interests of market players.This article is divided into three parts.The first part of the article is to sort out the case.By reviewing the case and analyzing the courts decision,it points out the focus of controversy in this case.The second part is the legal analysis of the controversial focus of the case.Firstly,it expounds the relationship between generic name and trademark.Then,combing with the identification elements of the generic name,analyzes whether the trademark “Daohuaxiang”involved in the case is generic name.Secondly,it analyzes whether the Wuchang company has used the trademark improperly and constitute trademark infringement.The third part is the author's summary of the difficulties in the identification of generic name and give some suggestions for improvement.It is hoped that it will provide reference value for similar cases,and promote a fair-competed market,and boost socialist market economy owns a healthy,stable andorderly development in the future.