| Trademark registration is a basic system adopted for trademark management in China.According to the Trademark Law of China,it is a form of trademark infringement who uses same or similar trademark on a similar commodity or service,but trademark coexistence is an exception.Trademark coexistence is a kind of social phenomenon in China.The study of trademark coexistence is developed on the basis of judicial practice in the absence of expressly provisions of law that is not very deep.It has not formed a complete and unified system currently.At present,trademark coexistence is just treated as a special phenomenon of judicial practice that a large number complex and diverse types of disputes are still arising In the absence of clear legal provisions,the judicial standard is uncertain.So it is great significant to deeply understand and study the trademark coexistence.This paper will make a typological analysis of the trademark coexistence cases of past ten years,and do statistics and reports on various types of cases and also makes a deep analysis of the related concepts and relationships involved.This case report divides the types of trademark coexistence into statutory coexistence,specific coexistence and contractual coexistence.Based on this classification,the author collected 178 valid cases as follows:1.Analysis and summary of cases involving statutory coexistence which forms case analysis reports.In addition to did case analysis on the condition that the“prior right”and “prior use”are coexisting,this paper also answered the relationship between “the protection of the prior right”and“likelihood of confusion”;2.Analysis and summary of cases involving specific typical cases' coexistence.On the basis of statistical analysis of the“time-honored brand ”,this paper demonstrates the special protection of the time-honored brand in judicial practice.For the establishment of a stable market structure,we should take market share,sales areas,publicity methods,duration,capital investment,and other factors into account,and analyze the specific issues.As for the coexistence of different commodity positioning,this section analyzes the methods of distinguishing similar goods and the boundary of cross class protection of well-known trademarks.3.Analyze and summary the cases involving agreed coexistence that the validity of the coexistence agreement shall be regarded as the balance between the private right disposition and the public interest.4.Analyze and summary the cases of good faith trademark coexistence.In the collection of 178 cases,except two types of trademark coexistence agreement”and“goods or services positioning different”,the court will consider the coexistence of trademark rights of the subjective intention in the trial process.Therefore,this case analysis will involve a separate analysis of subjective intention.The author believes that the likelihood of confusion is still an applicable standard to test and restrict the trademark coexistence principle.In the elaboration of the elements of good faith coexistence,the ultimate goal is to test and judge whether the coexistence of trademarks will lead to market confusion of greater possibility.On the basis of this analysis,it is necessary to decide whether the goodwill of others has clambered deliberately identification standard of trademark coexistence of goodwill.Through this case analysis report did detailed collation for each type of cases,it concluded that Trademark Law of China has not specific provisions of trademark coexistence.The absence of a unified standard is the main cause of confusion in the judicial practice.There is no uniform standard of adjudication,so that the court will have different trial results for the same case at different stages of the trial,and the same court will have different results for similar cases in different years.In addition to combing the existing legal provisions,the key to solving this problem is to return to the basic functions of the trademark law on the basis of the possibility of confusion. |
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