With the development of my country's market economy, the scope of commodity transactions is expanding day by day, gradually breaking through the original geographical restrictions. This will inevitably lead to trademark rights with national rights and trade names with rights in a certain area. rights overlap and conflict, resulting in legal disputes. The "Taiwan Michelle" v. "Beijing Michelle" case, the "CITIC Corporation" v. "Sichuan News Agency" case, and the "Huadu Machinery Phenomenon" that have attracted widespread attention in the society are all due to trademarks and trade names. conflict. What are the sources of these conflicts? Trademark registration tips: Do you want a trademark or a trade name? A big question may be bothering you. Scholars have analyzed and summarized this.
Guo Xiushen, a visiting scholar at the Intellectual Property Center of the Chinese Academy of Social Sciences, believes that the conflicts between trademarks and trade names include: first, the conflict of rights between a previously registered trademark and a later registered trade name; second, the conflict of rights between a previously registered trademark and a later registered trade name; second, the conflict between trademarks and trade names Conflict of rights between a registered trade name and a later-registered trademark. The direct cause of conflicts between trademarks and trade names is that some operators take advantage of legal loopholes when registering trademarks and trade names, registering trademarks that are already known to the public as corporate trade names, or registering trade names with high reputation as trademarks. , in order to mislead consumers, thereby easily obtaining the huge commercial benefits that can be brought by the well-known trademarks, famous trademarks and well-known corporate trade names created by others through hard work. The intangibility of trademarks and trade names determines that unlike tangible property, the rights holder can exercise actual control over the subject matter at all times. Therefore, the use of other people's trademarks and trade names can easily evade the control of the rights holder and the supervision of administrative agencies.
Associate Professor Wei Zhi of Peking University Law School believes that since the names and symbols that can be used as commercial marks are always relatively limited, and trade names and trademarks are not mutually exclusive in nature, they will objectively The trade names and trademarks of different operators are confused or similar. my country's current management system for trade names and trademarks itself gives the green light for the emergence of such confusion or similar marks. In my country, trademarks are registered centrally, and the competent authority is the Trademark Office. Once a trademark is registered, it is valid nationwide. When conducting a substantive review of a trademark registration application, the Trademark Office often only examines whether the mark is distinctive and the prohibition of marks, and the prohibition of marks does not directly involve the provisions of the trade name. In terms of trade names, hierarchical management is implemented. National enterprises and foreign-invested enterprises are approved and registered by the State Administration for Industry and Commerce, and other enterprises are approved and registered by the local provincial, municipal, and county industrial and commercial bureaus. There is no direct reference to trademark content during registration verification, so it often happens that someone else’s trademark is registered as a trade name.
Solving problems is the key. The existence of problems is not terrible. The key is how to solve the problems. This is the common knowledge of all participants. They put forward some principles and countermeasures to resolve conflicts based on the reasons for conflicts between trademarks and trade names and based on specific actual conditions.
1. Balance of interests
Some scholars believe that trademark rights are national rights, while trade names only have effect within a certain region. When the two conflict, the trademark should be protected first right. Most experts and scholars hold different views on this, believing that trademark rights and trade name rights are rights generated in accordance with the law, and there is no difference in size in themselves. We cannot ignore the trade name right because it is easy to obtain and its effect is limited in the area. its protection. In handling cases of conflict of rights, the interests of all parties should be taken into consideration and balanced. When making a judgment to revoke a trademark right or order a change of trade name, factors such as the length of time when the trademark right or trade name right was formed, whether there was bad faith in the trademark application or trade name registration, should be considered. .
2. Incorporate trade name rights into the intellectual property legal protection system
Some scholars believe that trade names are the carrier of corporate reputation and product reputation of commercial entities. Operators rely on the rights they enjoy in An advantageous position in competition can be converted into economic benefits, and commercial entities can also license the right to trade names to others to obtain economic benefits. Precisely because the right to a trade name has dual attributes of property rights and personal rights, it is theoretically believed that the right to a trade name conforms to the characteristics of intellectual property, and the right to a trade name should generally be regarded as an intellectual property. Relevant international conventions have also included trade names, invention patents, trademarks, etc. in the scope of protection.
However, the scope of intellectual property rights stipulated in my country's "General Principles of Civil Law" does not include trade name rights. In order to change this unreasonable situation as soon as possible and integrate with international conventions, it is recommended that trade name rights be included in the intellectual property legal protection system. Effective protection
3. Prohibition of confusion
In market competition, due to the use of identical or similar trademarks and trade names by both parties, consumers may misunderstand and cause confusion, which may affect both parties or The competing interests of one party are manifestations of the conflict between the exclusive right to use a trademark and the right to trade a name, and are also the source of interest for the right subject to request confirmation of rights and resolution of the conflict. Therefore, some scholars believe that according to the fact that my country's trademark registration is under unified management across the country and business names are under decentralized management, and there are currently no clear provisions in my country's existing laws and regulations to deal with conflicts between the two, when the two conflict, regardless of whether Whether it occurs on similar goods or on different types of goods, except for those with good intentions, the primary principle should be to prevent confusion, and infringement of other people's exclusive rights to trademarks and trade names should be investigated and punished in accordance with the law.
4. Protection of prior rights
In the case of a conflict between trademark rights and corporate trade name rights, the law should protect the rights that were obtained legally beforehand. The trademark is registered first, and the company name is registered later. If there is a conflict between the two, the law should protect the rights and interests of the trademark owner. However, if the enterprise's trade name is registered first and the trademark is registered later, if the enterprise's trade name right can compete with the trademark right, the enterprise's trade name right should be protected by law; if the enterprise's trade name right cannot compete with the trademark right, and the trademark right is legal and valid, the enterprise's trade name The right holder still enjoys the exclusive right to use the enterprise's trade name within its corresponding scope.
5. Judicial relief measures
In recent years, cases involving conflicts between corporate trade names and trademarks have gradually increased. Although administrative agencies have taken some targeted measures, it is difficult to see such cases due to various reasons. Therefore, it is inevitable to resolve disputes through judicial channels. In fact, the People's Court has also heard some typical cases involving conflicts between trademark rights and trade name rights. However, in judicial practice, due to the lack of unified legal application standards, courts in various places have different approaches to handling such cases, which is relatively confusing. Some may sentence an enterprise to stop using its trade name, while others may sentence the enterprise to change its name. Trade name, etc. Therefore, some judges have called for relevant judicial interpretations to regulate this. Some scholars believe that judging from the current legislation and judiciary, there are no problems that the courts cannot solve. The key is that judicial organs should improve the creativity of legal application and make full use of existing legal resources to solve the problem. There is no need to wait until A new thing is introduced.
In addition, the participants also discussed the reasons for conflicts between trademark rights and patent rights, trademark rights and copyrights, trademark rights and domain names, etc., and also proposed some solutions.