Research On Conflicts Of Trademark Right And Prior Copyright

Today’s world is the knowledge economy era, the emerging field of science and technology development area has brought great impact of intellectual property rights, the contradiction between different intellectual properties is more and more prominent, especially the dispute between trademark right and prior copyright, which serious damage to the social interest. Based on the prior works, some in-depth analysis on trademark rights conflict were carried out, this paper expounds the basic theory of the conflict between trademark rights and prior copyright, summarizes some solution principles to the conflict of rights, and put forward the legislative and judicial suggestions, hope to provide some reference on the solution of the conflict between trademark and copyright.The author first analyzes the theory meaning and characteristics of trademark right and prior copyright, on which basis, the conflict between prior trademark and copyright rights conflict is defined as the contradiction legal status of two rights which share with the same object and different subjects, and the interest conflict between two subjects. There are various kinds of conflict types between trademark and prior copyright rights, according to the nature of the object, mainly including the word mark and written works; graphics trademark and graphic arts or photography; trademark and virtual character name; stereoscopic trademarks and architecture or sculpture; sound trademark and music works. The reasons which cause the conflict between trademark right and prior copyright mainly include three aspects named the internal reason, the institutional reason and the other reasons.In our country, the first problem in law legislation is not explicitly forbidden the registration for trademarks which using tags that conflict to others’prior rights. Secondly, the scope of copyright has not yet been determined up to now. Thirdly, the application procedure for registration in the "Trademark Law" has not yet distinguished the good or evil of the trademark registrant. In judicial practice, there exists problems that the judicial organs prefer to absolutely protect the prior copyright, this is unfair to the posterior trademark holder, and lead the waste of social resources. Our country which is adopted in dispersible special legislation system, the retrieval system on trademark is not yet complete where is the place needs to improve. Reorganizing the relevant laws, regulations and treaties abroad and outside that related to the trademark and prior copyright by using the comparative analysis method. The results show that there mainly include three solutions on the conflict between trademark and prior copyright which named forbidden to use, rejected for registration and revoked. The solution also can be divided into two aspects, legal remedy and relief afterwards.In view of the problems obtained from the above analysis, the author presents some solving principle aimed at the problems that existing in the law of our country and gives some suggestions on the legislative and the judicial. On the aspect of legislation, it is mainly to determine the power scope of the prior copyright, and on the legislative level, the primary is to distinguish the good or evil of the trademark registrant. In judicial practice, it needs to establish compensation system and to solve them by administrative means, of course, also can use some methods such as common interests and strengthen the cooperation of relevant departments to improve the ability of the solution of the conflict.