The Act Of Trademark Registration Damages The Judicial Determination Of Prior Name Rights

In administrative litigations of trademarks authorization and authentication,there are two ways to invoke basic rights to judge whether a certain act of trade mark registration cause a tort of personal name rights and interests.One is that the act of trademark registration damages the right of personal name.The other is that the act of trademark registration infringe the merchandising rights and interests.Although the merchandising rights and interests of personal name can be interpreted as "prior rights" in Article 32 of the Trademark Law of the People's Republic of China,and the courts have classified the rights and interests of the merchandising into the object of the rights of personal names in judicial practice.However,on the one hand,there are several essential differences between the two kind of rights and interests.On the other hand,the merchandising rights and interests could not be deemed as jura in rem.Therefore,it is inappropriate that the Chinese courts invoke merchandising rights and interests of personal name enjoyed by nature persons as “prior rights” in administrative litigations of trademarks authorization and authentication.In contrast,rights of personal name is one of the specific personal rights in Chinese legal system,and its connotation and application rules is comparatively clear and definite.Based on the explanation of scholars and practitioners,the individuation and identity interests of personal name could serve as causes to prevent relative registration of trademarks.However,due to the legislative blankness on the connotation and application rules,invoking merchandising rights and interests of personal name,such newly arisen rights and interests,to fill legal loopholes ungrounded is likely to cause confusion in the legal system.As a result,Rights of personal name is more appropriate to be invoked as "prior right" than merchandising rights and interests of personal name.Besides,reputation of personal names is not the premise for natural persons to request legal protection,however,it is only one of the reference factors.And the courts take reputation of personal names into account is appropriate to judge the tort of rights of personal name.As a consequence,combined with the current judicial practices,the courts could judge whether the trademark registration act constitutes damage to the rights of personal names through the general method of tort identification.