Research On The Judicial Application Of Trademark Coexistence

With the continuous application of trademark coexistence in judicial practice,the theoretical exploration of trademark coexistence in China is getting deeper and deeper.Some scholars suggest that the trademark coexistence system should be constructed in the trademark law system,which is consistent with the provisions of the right of first use and also conforms to the reality of resolving the right conflict through trademark coexistence.However,if the coexistence of trademark is completely legal,other systems in the trademark law must also make corresponding coordination.Therefore,under the limitation of legislative activities,how to reasonably identify the coexistence of trademarks in judicial practice is particularly crucial.Based on the cases of trademark coexistence in China's judicial practice,this paper analyzes the identification of trademark coexistence and its problems,and puts forward the corresponding countermeasures.According to the different reasons of regulation,there are three kinds of co-existence of trademarks in judicial practice.As there are clear provisions in the trademark law,there is only the problem of specific identification rules.The judicial organs need to identify the constituent elements of the right of first use in cases according to the legislative interpretation and system value of the right of first use.By judicial policy of "market pattern theory" although can effectively solve the conflict between the prior registered trademark and the after trademark,but since there is no form of specific rules makes confused all the more difficult to judge,"Relatively stable market order" is the court of the use of comprehensive trademark judgment confusion,therefore,the court can identify the goodwill or popularity formed by the trademark according to factual evidence and protect it with the value pursuit of maintaining fairness and order.The trademark coexistence agreement has been widely used in judicial practice,but it also faces the definition of the relationship between the coexistence agreement and confusion,the coexistence agreement and the trademark similarity.In view of the respect for private rights and the maximum possible avoidance of confusion,the judicial authorities should review the content of the coexistence agreement and use the content to deny the validity of the coexistence agreement.Trademark coexistence can effectively solve the trademark conflict,maintain the rights and interests of the prior trademark and the market order.The legislative purpose of trademark law is not only to protect the trademark right,but also to protect the goodwill.The function of trademark also lies in that it can indicate the source of commodities in the market and form a certain relationship with consumers.Therefore,the use value of trademark cannot be ignored while strengthening the registration mechanism.At the same time,the principle of good faith is also a principle explicitly stipulated in the trademark law.