Conflict And Resolution On The Right Of Trademark And Trade Name

In recent years, the cases concerning conflict between trademark and trade name right have been increased day by day. Not only the interests of rights holders have been caused damage, but also the interests of consumers have been compromised, and the fair and orderly market competition order has been disrupted. So, whether legislative, or judicial practice, how to resolve the conflicts are imperative. Looking for a solution to the conflict between trademark and trade name right has become the hot and difficult problems in the theoretical circle and practitioners to discuss. This paper attempts to study the basic theory of conflict ,compare China's legislation to foreign country's legislation concerning conflict between trademark and trade name right,identify deficiencies in our legislation and judicial practice, propose thinking and recommendations about solving the conflict between trademark and trade name right and find the best way to resolve and coordinate the conflicts .This paper is divided into four parts.The first part is an overview of trademark and trade name right, mainly on the concept of trademark and trademark right ,trade name and trade name right, and analysis of the similarities and differences between trademark and trade name referring to the functions, the way to obtain the right and the scope of the effectiveness. This chapter defines the legal nature of trade name right. Trademarks and trade names belong to intellectual property rights. There are differences and common points between them. So the conflicts between them are possible and inevitable.The second part researches the theoretical issues of the conflict between trademark and trade name right. By analyzing the conception and characteristics of conflict of rights, intellectual property rights, we can see the conflict between trademark and trade name right are different from violations of intellectual property rights. Then it sums up the forms and classifications of the conflict between trademark and trade name right. Finally from different points of view it analyzes the causes of conflict, such as the nature of the right, the similarity of the right, economic interests and the loopholes in the system, and so on. Through analysis of the reasons, we can see the conflicts between trademark and trade name right generated inevitability.The third part is the comparative study of legislation between China and foreign country. Through analyzing the similarities and differences of other country's legislation model in international conventions and foreign law, we can learn from experiences to improve our legislation. Then it analyzes relevant provisions of China's current legislation and finds out shortcomings in legislation.The fourth part is the thinking and recommendations of the resolution of the conflict between trademark and trade name right. Mainly from two points of view: the legislative improved and judicial equity. In legislation we should incorporate the trade name within the legal system of protecting intellectual property rights. In the administration of justice, equitable way is the final settlement of the conflict. Improving legislation can not completely eliminate the conflict of the rights, only coordination, prevention and mitigation. Therefore the ultimate resolution to conflict of the rights is the discretion of the judge based on different principles. Case studies are the most important way.