Research On Goodwill Co-existence Of Trademarks And Trade Names

Trademarks and trade names are commercial signs legally entitled to companies, aimed to help distinguish the source of goods or services. The co-existence of trademarks and trade names means that different operators uses the same or similar commercial signs on the same or similar goods or services, which is generated by judicial determination. It is common to see co-existence of trademarks and trade names currently. Neither legislation nor judiciary has clear attitude to the co-existence of them. Even the tort theory of commercial signs is misled by the cognition of “similar means infringement” and does not clarify the relationship between infringement and similarity of trademarks and trade names, so that the conflict between trademark and trade name occurs frequently and the rights of them is unstable.Otherwise, the similarity between trademarks and trade names and the theory of trademark function, trademark confusion and trademark dilution support the legal coexistence of trademarks and trade names. Nowadays, many countries have set up a series of provisions to process the coexistence of trademarks and trade names. In that way, it can help to improve the efficiency of using commercial signs and protect the legal rights and interests belonged to the legal right owners. However, it is inevitable that problems appear, such as the confusion among consumers and unfair competitions among competitors. In order to solve these problems and improve the regulations to adjust the relation between trademarks and trade names, the author suggests to put the following measures into practice. Measures should be taken according to the guiding principles of prior rights principle, Anti-aliasing principle and Anti-dilution principle. First, the protection of trade name should be included in the protection system of Trademark Law and enroll the trade name into the scope of prior rights protection. Second, set up the identification and protection system to well-known trade names according to the system of well-known trademarks. All these measures are aiming to avoid the appearance of conflict among trademarks and trade names. The court should take all elements mentioned in the theory of goodwill coexistence, such as using with goodwill, using in long-term and the formation of an objective market structure. Simultaneously, the court should demand prior rights owners affix different logos when run the business in the following days. And the party that be restricted can obtain reasonable financial compensation from the other party as it gets benefit relatively.In conclusion, to deal with the goodwill coexistence of trademarks and trade names, measures should be taken both from the prevention side and post-regulation side, combining with the legislative and judicial measures. Only in this way can we achieve the aim of protecting the rights of trademark owners and trade name owners, and maintaining the market order and public interests. That’s what the public interests demands.