Can a dispute over the right of enterprise name be prosecuted? Three stages of the development of judicial practice
1. The administrative registration procedure does not include civil litigation.
This view mainly rose in the 1990s, and the administrative departments for industry and commerce in some backward areas still hold this view. That is, the enterprise name registered according to law is a civil right obtained through administrative procedures, which is the embodiment of specific administrative acts. Disputes can only be resolved through administrative reconsideration procedures or corresponding administrative litigation. Typical cases such as Michelle v. defendant Michelle Clothing (Beijing) Co., Ltd. are trademark infringement and unfair competition disputes.
2. Pre-dispute settlement of administrative procedures
This view mainly rose around 2000. That is, the obligee should first file an administrative reconsideration procedure. If the administrative procedure ends or the administrative organ fails to handle it within the time limit, the obligee may bring a civil lawsuit. For example, the Supreme People's Court's Summary of Symposium on Intellectual Property Trial in Some Courts in China (199865) clearly put forward this view.
3. Civil litigation is not affected by administrative procedures, and cases of conflict of enterprise name rights can naturally be sued. At present, this view is mainly held in judicial practice.
Current judicial and policy basis
1. the Supreme People's Court's Provisions on Several Issues Concerning the Trial of Civil Disputes over Conflicts between Registered Trademarks and Enterprise Names (Fa Shi No.20083) stipulates in Article 2? If the plaintiff brings a lawsuit on the grounds that the name of another enterprise is the same as or similar to the name of its previous enterprise, which is enough to confuse the relevant public about the source of its goods, violates the provisions of Item (3) of Article 5 of the Anti-Unfair Competition Law and conforms to the provisions of Article 108 of the Civil Procedure Law, the people's court shall accept it. ?
2. Cao Jianming, former vice president of the Supreme People's Court, pointed out in his speech "Strive to build a fair, efficient and authoritative intellectual property trial system" at the second national court intellectual property trial work conference that although there are legal forms such as industrial and commercial registration, if an entity constitutes trademark infringement or unfair competition, it should be recognized as trademark infringement or unfair competition according to law, and it is not necessary to take administrative treatment as a precondition, nor should the lawsuit be suspended due to administrative treatment.
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The name of an enterprise is the name used by an enterprise in its business, that is, when an enterprise is a legal act in its business, it is used to sign or be used by an agent to trade with others. The enterprise must have a name recommended by me and distinguished from other trading entities; Otherwise, enterprises will have a lot of inconvenience in their business activities, and will also bring chaos to the trading order. Therefore, the name of an enterprise is one of the main issues in the adjustment of the Business Registration Law. The parties concerned shall register the name of the enterprise according to law, and can only use it after approval and registration; If an enterprise name is used for production and business activities without approval and registration, the competent authority shall order it to stop its business activities, confiscate its illegal income or impose a fine.
Enterprise name registration can prevent others from using its name for unfair competition, which will affect its commercial reputation and infringe its commercial interests. After the enterprise name is approved and registered, the enterprise enjoys the right to use and has two legal effects.
1. Exclusive effect. After the enterprise name is approved and registered, it has the effect of excluding others from registering with the same or similar name. Article 6, paragraph 1 of the Regulations on the Administration of Enterprise Name Registration stipulates: An enterprise is only allowed to use one name, and it shall not be the same as or similar to the name of a registered enterprise in the same industry within the jurisdiction of the registration authority. ? According to this regulation, after the enterprise name is approved for registration, if other enterprises in the same industry apply for registration with the same or similar name within the jurisdiction of the registration authority, the competent authority shall not register it.
2. Relief effectiveness. The right of enterprise name is created through registration, which can exclude others from using the same name to run the same business. Where an enterprise name registered by another person is used without authorization or there are other acts that infringe upon the enterprise name right of another person, the infringed person may request the infringer to stop the infringing act, or request the competent authority to order the infringer to stop the infringing act. If there is any damage, the owner of the enterprise name right may request compensation. The infringed person may also bring a lawsuit directly to the people's court.
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