Trademark deposits can be of various types due to different classification standards. Precisely because of different classification standards, there will be overlap between different classifications. For example, a deposit by agreement can be a deposit in good faith or a deposit with malicious intent; similarly, a deposit in good faith can be legal. Deposit, deposit of specific facts or deposit of agreement, etc. [1]

1. Good-faith trademark deposits and malicious trademark deposits

According to the conflicting trademark deposits in *** During this period, whether there is subjective malicious intent or unfair competition purposes will divide trademark deposits into bona fide trademark deposits and malicious trademark deposits. Both goodwill and bad faith here refer to the subjective improper purpose of the existing trademark owner after the existing relationship is established. Good-faith trademark existence means that the existing conflicting trademark rights holders have fulfilled their duty of care in using the trademark in good faith and do not have the purpose of unfair competition (that is, between the existing trademarks, or with the existing trademarks). *Between competitors outside of existence). The existence of a well-intentioned trademark may also infringe the rights and interests of consumers, which may mainly cause confusion to the relevant public. The existence of malicious attacks is more complicated. There is an intention to unfairly compete among entities, or there is an intention to unfairly compete with competitors other than the entity, or the entity itself has other illegal purposes.

2. Coexistence between registered trademarks, coexistence between unregistered trademarks and registered trademarks, and coexistence between unregistered trademarks

This division is based on whether the existing object, that is, the trademark is registered. Because the publicity effect of a trademark is different whether it is registered or not, this is related to the discussion in Chapter 5 on the analysis of reasonable restrictions on trademarks and the existence and size of claims among existing trademark rights holders. The existence of registered trademarks is generally based on legal reasons. However, it may also exist due to specific facts. For example, the "H" trademarks of Honda and Hyundai exist legally. This is because the trademark is no longer the main identifier for identifying the source of goods, and the search cost for consumers cannot be afforded. A specific factual existence caused by a major or critical role. Agreement is another way, which is often reflected in trademark laws outside mainland China. The reasons for the existence of unregistered trademarks and registered trademarks are generally the same as the above situations.

The existence of unregistered trademarks is more complicated. This is mainly because the publicity effect of the rights is low and the proof is difficult. As long as it cannot be proved that the right holders of each unregistered trademark had malicious intent or unfair competition in the initial use, the existence of the trademark should generally be allowed.

3. Legal deposit, specific deposit and agreed deposit

This classification is derived from conflicting trademark deposits The classification of mechanisms or pathways is the focus of this article. This classification has very good theoretical or practical significance for comprehensively understanding and grasping the issue of trademark existence, and also provides a basis for actors to establish the existence of conflicting trademarks.

1. Legal existence

Legal existence refers to the existence of conflicting trademarks based on legal provisions. Professor Li Yang demonstrated the existing problems between previously used unregistered trademarks and later registered trademarks. The legal basis is the provisions in Article 9 of the Trademark Law regarding conflicts between registered trademarks and prior rights and the prohibition of trademark registration in Article 31. If the prior rights holder’s unregistered trademark is not sufficiently famous to prohibit the subsequent registration of conflicting trademarks, the registered trademark can be legally registered; but the unregistered trademark already has the necessary conditions to continue to exist within the original scope. , so a later registered trademark cannot in turn prohibit the continued use of an earlier unregistered trademark. At this time, the existence of the two is established. This kind of existing relationship is based on the provisions of the law and is therefore legal.

2. Specific trademark existence

This mainly refers to conflicting trademarks or special reasons that prohibit the existence of trademarks that are unfair to existing laws, or under special circumstances. If the conflicting trademark no longer plays the main role of identifying the source of the goods or has been attached to other signs that mainly indicate the source of the goods, or consumers do not care about the presence or absence of the trademark, it will not increase the search cost of consumers. At this time, even if There is no need for the law to prohibit the existence of very similar trademarks when they are used on the same goods.

Common situations include the following:

(1) Historical reasons have caused conflicting trademarks to have existed for a long time before the formulation of my country’s Trademark Law. At this time, regardless of whether someone applies for registration, prohibiting the continued use of any trademark that has been used before the enactment of the law violates the fairness of the law. Moreover, generally speaking, the law cannot be applied retroactively unless it is beneficial to the parties concerned. This is very obvious in the trademark protection given to many time-honored brands. It turns out that the simple handling model has caused great injustice and greatly reduced the public's trust in the law and justice.

(2) The existence of unregistered trademarks that have gained popularity through long-term independent use2. This situation is that users of unregistered trademarks do not or cannot prove subjective malice, and the trademarks have a certain degree of popularity after use. If there is no harm to other prior rights or mutual rights, it is allowed to ** *Save is appropriate.

(3) The situation where the trademark no longer plays a major identification role. This is because the goods marked by the trademark are specific, such as cars, large movable ships, real estate such as houses, etc. Consumers can almost ignore the value of the trademark. For example, the "H" similar trademarks of Hyundai and Honda in cars, or the trademarks of elevator products such as LG.

(4) The positioning of the products is different and neither party has the intention to enter the other's market. It is also rare for consumers to have demand for both parties' products. This exists in countries or regions with more rational consumption. Like the United States 1, it does not seem to be easy in our country.

3. Agreed deposit

The deposit of conflicting trademarks based on the agreement must meet the following requirements:

(1) Agreement Each existing trademark shall not infringe other prior legal rights. This requires that each trademark in the agreement must not conflict with other prior intellectual property rights such as copyrights, patent rights, etc., and prior civil rights such as personality rights, personality interests, etc. outside the agreement. The exception in this case is the consent, acquiescence or expulsion period of the prior right holder, etc.

(2) There must be no illegal clauses in the agreement. For example, it is clearly agreed that the purpose is to exclude other competitors or other unfair competition, or to monopolize the market, or to seek other illegal benefits or achieve some illegal purpose, etc.

(3) The agreement should have the following clauses: prevention of possible infringement of consumer rights and public interests due to confusion; specific resolution of possible or existing confusion, such as which party Undertake the obligation to attach distinctive markings; fulfill the obligation to inform; etc.

(4) It is agreed that there should be product quality assurance and compensation measures for damage to consumer trust and interests.

(5) There must be no other content that violates mandatory provisions of the law.

(6) The agreement shall be filed with the relevant authorities. This is because the rights holders of trademarks include competitors, consumers and the public. Therefore, relevant state agencies have the responsibility to supervise the use of trademarks. The existence of a trademark itself may damage the interests of these rights holders. Registration can remind relevant agencies to strengthen supervision to ensure that it exists legally and reasonably. This is also determined by the legal nature of trademark exclusive rights.