Research On Trademark Right’s Boundary

From the ideal state, rights must have its boundary. Especially in our trademark legal system which is focus on trademark protection. Because of the choice of legislators, trademark protection is treated as a kind of civil right, so even if is due to the shortcoming of legislative skills and the public product characristics of trademark, the trademark right’s boundary could not be discript clearly, it must provide adequate guidance to facilitate the adjustment of their behavior in trademark area. The goal of this paper is how to determine the trademark right external boundary. Trademark right boundary is not an independent concept, but built on many other concepts such as trademark, trademark right and other concepts in trademark field.of This fact suggests an approach different from trademark infringement judgment standard, namely, by reflecting on the trademark domain basic category and definition to outline the trademark right boundary.In addition to the introduction and conclusion, there are five chapters. In the first chapter, introduced the concept of trademark and the nature of trademark though historical analysis. As a legal term, as a symbolic language why trademark can be regulated by trademark law? At the beginning of trademark protection,trademark was treated as a kind of guild management tools, is a kind of market management means and there is no trademark rights. Different from the populate views that trademark is properties of trademark users, people generally agreed that trademark protections is regarded as the anti unfair competition law.Its main purpose is to rectify the order of fair competition. In the process of businessmen to actively promote the strength of protection and the scope of trademark proptection,"the interests of consumers" is often used as a magic weapon for righteousness support. In this sense, the trademark rights that is more like a social public right rather than the trademark rights of users. After the trademark came into trademark law perspective, trademark law set some external conditions for trademark in the symbol of the ocean,this conditions constitute the essence and characteristics of trademark. These external conditions is a legislator subjective choice, trademark would not lose its whole meaning just because of the choice of trademark. For example,"apple" was selected to be an electronic product trademark,this selective behavior can not destroied all other meaning s of "apple" Therefore, the trademark not only to these external condition for its existence premise, the protection of trademark rights should also take these external conditions for reference. To observe the extension of trademark from the view of history, trademark has been in the process of evolution, the external manifestations of the trademark from text to picture, from plane to three-dimensional, from visual to auditory.These changes fully demonstrated that trademark’s continuous expansion though the development of the new technology. Although constantly enrich its external, trademark did not really change its nature as a trademark.The distinguish function has been the basic standard of trademark in trademark laws. Whether as a guild management tool or as owner’s private property, which is changed is the trademark protection mode and intensity, which is unchanged is the essence of trademark and trademark protection. Under the complex trademark forms, trademark is invariant boundary.The law of the protection of trademark objectively experienced from a public law to private law. Although by weighting the implementation of trademark protection, it is very important for the public and the trademark owner, but why should we protect the trademark is still must be answered clearly before delineated the boundary of trademark right. Therefore, in the second chapter,we discussed the legitimacy of trademark protection. Although since twentieth Century, the common ethics has focused on demonstration and analysis, did not pay much attention on mora problems. But as a kind of public goods, trademark rights required to demonstrate legitimacy support. It gained public support though the name of the consumer protection. Trademark right was designed to protect the interests of consumers. This confined the application of tradional theories of intellectual property in trademark area. Trademark was treated to be a temporary way of trademark protection, so when the trademark protection center transfered from the consumers’ interests to the interests of trademark rights, we need a new legitimacy rationality theory to support the existence of trademark right. However, the traditional justification of intellectual property theory did not focus on trademark issues,morden trademark protection theory does not pay much attion on trademark rights legitimacy problem.Exsits researches is not in a whole system. The trademark rights legitimacy not only has to answer the questions of trademark right’s scientific and reasonable cause, but also has to solve the extension of trademark right protection--the boundary problem. From the implementation of trademark function perspective, trademark’s natural attributes is conflict to its distinguish function. The exclusive use of trademark is the premise to actualize the function of trademark, and the attributes of public products of trademark also decided that the trademark can not achieve the exclusive use in physical space. Therefore, according to the law of the exclusive trademark has become the only and necessary choice. From the aim of trademark law, tradqmark right granted users with sufficient incentive to devote to trademark trademark right, the result is not only conducive to trademark the wealth of society production and accumulation, and also conducive to the protection of consumer interests and the legitimate market competition order. In this sense, the trademark has logical and superiority of moral. The existence of trademark right lies in realizing the function of trademark, trademark right protection nature cannot be obtained beyond the scope of trademark function.Although "when the property was used to delineate an exclusive area, it is necessary to show that there are some can clearly visible boundary to get to enjoy things; there are some of the definition of its boundaries and to distinguish between the marker". But the invisible attributes of trademark determines that trademark right boundary cannot be obtained directly through external observation. After the trademark right as a civil rights confirmed by law, object of trademark rights is of great significance to delineate the boundary of trademark right. In the third chapter,the trademark object are discussed. A lot of controversy about the object of trademark rights has been settled, scholars have put forward many assumptions and theory. Some theories have a greater influence sucli as the sign theory, the goodwill theory, the information and contact theory. All kinds of relevant trademark object theories has its reasonable composition, but did not focus on the object and the nature of trademark right and the trademark justification,so their conclusions are one-sided. The sign theory focus on the logo but ignore the confusion standard; the goodwill theory emphasized the important position of goodwill in the trademark property value but cannot explain the non synchronization in the trademark transfer process, the information theory and links theory is not accurate enough. These are an important reason for the current situation. The object of trademark rights is the carrier of trademark rights in the legal relationship of obligation, a metaphor of trademark right boundary. Study on the object of trademark rights can not be off the essence of trademark and trademark protection from the legitimacy and to obtain the correct results. Trademark functions not only forms the essence of trademark, trademark right is also the base of legitimacy, it is the realization of the goal of protection of trademark and trademark object.To confirm trademark right boundary could not avoid the relevant standard of trademark infringement. In fact, it is normal to determine the boundary of trademark right though the standard of trademark right infringement However, there are double and multiple standards in the field of trademark infringement judgment put trademark right boundary into an unstandable situation. In the fourth chapter discusses the judgment criteria of trademark infringement on trademark right boundary effects and draw a conclusion that the criteria of trademark infringement is the abstract of trademark right boundary.so different interests in trademark protection definitely draw different trademark right boundary. The confusion standard and the dilution standard has clear differences and which criteria should be used to determine the right boundary is depends entirely on the trademark own fame. You can imagine that when faced before such trademark right boundary, how can we not in a confusion. The judgment criteria of trademark infringement is the same as the boundary of trademark right needs some formore concepts to analyse itself. The essence of trademark, the trademark and trademark object limited and affected trademark boundary. The trademark function is the core of these concepts, so the trademark function is the ultimate standard of infringement.The external form and functions of trademark are in the evolutionary process constantly. Every time a new function that adds new contents for trademark right. In the fifth chapter, based on the function of trademarks as the breakthrough point, to study the evolution course of trademark function and trademark protection mode,compared with the changes of the style of trademark protection,we can draw a conclusion that different functions have different meanings for different social subjects. The most important subject in the legal relationship of trademark is consumers, trademark users and market management, based on the different interests, the parties have different requirements for the function of trademarks, and therefore support different trademark right boundars. Trademark law’s aim is to balance these interests.Trademark’s function is the fundamental standard boundary delimitation of trademark right, can fully meet the requirements of the protection of the interests of the relevant parties. The basic function of a trademark as the intersection of the interests of all parties, in order to derive the function of the trademark interests of all parties as extension of the scale, not only can establish the self consistent unified trademark right boundary in theory, also can protect trademark efficiently.The basic category of many of the trademark domain seemingly scattered but ordered. They are integrated by trademark functions. Trademark function should be the boundary of trademark.