Research On The The Legal Dilemma And The Relief Way Of Trademark Nicknames

What are the legal dilemma of this relatively new trademark nicknames disputes,and what remedy can protect trademark nicknames at the same time not causeconsumer confusion? Different people have different views in practice and theory inour country, trademark nicknames disputes emerged in administrative and judicialpractice, such as "Guang ben case","Perrier Jouet case","Land Rover case","Viagracase,"Guang Yun Gong cake case" and so on. The different results of courts and thetrademark review and adjudication board caused the academic attention and study.Therefore, this paper will comb the related administrative adjudication and judicialpractice firstly, analyses the legal predicament under domestic existing trademark lawand anti unfair competition law. Then, combing American related trademarknicknames cases as reference, combined with the public use rule and the relevantdefense rules for our judicial practice; finally, put forward some suggestions fortrademark nicknames remedies under the existing legal framework, in order to affordreference for the theory and practice circle.In structure, this paper is divided into three parts:The first chapter: Summary of the protection status quo of trademark nicknames.Expounded through the concept and classification of trademark nicknames based onthe form of intuition, according to the applicable law and the protection of different ways, trademark nicknames will be divided into two categories. Then, review thecurrent trademark nicknames disputes with a brief overview of the form of tables onthe registered trademark, nicknames owners’ claim and court’s conclusion. The legalquagmire of protecting trademark nicknames. Trademark nicknames are protected bymainly four ways at present in our country: unregistered trademark; Approximateconfuse trademark; shall not be registered trademark; anti unfair competition law toprotect trademark nicknames. The legal dilemma of these four ways are analyzed anddiscussed. The focus of this chapter is to protect the unregistered trademarks whichshould be affirmative premise--public use of trademark nicknames to be regarded asprior use. On this issue, the author summarizes the theories of various scholars pointof view, combined with the practical results, respectively from two aspects ofreasonable and unreasonable. The paper’s tendency is unreasonable, before theexhaustion of other remedies there no need to create new system in trademark law.The second chapter: The protection path research of American trademarknicknames. USA has over100years history about trademark nicknames cases, whilethe scholars in our country have not studied systematically. Based on the analysis ofthe main line about the public use rules and defense rules, combined with the typicalcases, such as Coca-Cola trademark dispute, the Losangeles rams football companytrademark nicknames case, clear and definite the rich connotation of public use ruleand estoppels rule, put forward some suggestions for the judicial practice in ourcountry. In addition, this paper also studies the principle of consumer protectionmeaning confusion in trademark infringement, in order to put forward somesuggestions for the theory and practice of trademark nicknames in our country.The third chapter: Countermeasures of trademark nicknames protection in ourcountry. Based on the above discussion, this paper summarizes four kinds of feasibleremedies to protect trademark nicknames: the approximate confusion with the existingtrademark; anti unfair competition law; advanced relief of defensive trademarkregistration; the theory innovative of public use trademark. In the approximateconfusion with the existing trademark, classified into two categories of approximationand not approximate in the existing trademark law framework and elaborate on the different protection methods. Referred to American judicial practice when notapproximate to a trademark nicknames, the suggestions is that expandinginterpretation of trademark approximation from the meaning of existing trademarkconfusion.In the anti unfair competition law, the paper discusses on the specific terms ofnames of famous commodities and the general terms of the honesty and creditprinciple and the terms of conflicts between trademark and enterprise name to carryon remedies of trademark nicknames. Different from other lagging way of relief,this paper suggests t he third one that the corresponding trademark register defensiveand united trademarks to build perfect hedge. This remedy affords prior protecttrademark nicknames according to the characteristics of two kinds of specialtrademark law.In the relief way of theoretical innovation of public use trademark, the subject ofthe right belongs to the public which is not specific, and suggests the validity andfeasibility in theory and practice. Expounds the feasibility and advantage bytrademark registration, usage, administrative objection and public interest litigationof public use trademark.