Research Of Trademark Nicknames' Problems And Regulation

With hundreds of years' development of trademark law, few decades research and application of trademark law in China is clearly insufficient to deal with the rapidly changing life, so the new trademark law difficult issues like bamboo shoots after the rain, especially trademark nickname dispute in a cross administrative and judicial practice, such as "Suo'ai(Sony Ericsson)" and "Guangben(Honda in Guangzhou)", "Bali zhi hua" and "Luhu(Land Rover) ", "Weige(Viagra)" and "Guang Yun Gong bing", etc. Therefore, based on the national judicial practice, analysis of the classical cases and relevant experience in foreign research, this article will clarify and conclude solving method of trademark nickname. The article is divided into four parts:The first part explains the basic theory of trademark nickname. It introduces trademark nickname's basic concepts, the basic character classification. Trademark nickname refers to a product or service with good fame, whose trademark is linked to a plain customary nickname, for instance “Suo'ai(Sony Ericsson)”, a typical case in the “Supreme People's Court's Intellectual Property Cases Annual Report(2010)”. The Deep theoretical research base on basic solid theory.The second part introduces trademark nickname cases and relevant regulations' application. In particular to explore the relationship between parties and judiciary decision, and then analyzes the internal factors over the judiciary at all levels. In trademark nickname cases, "adverse effects" clause, unregistered trademarks, similar confusion, unfair competition and other terms are hard to apply.The third part is the study of foreign rules of trademark nickname. Foreign market economy ahead of our country for hundreds of years, and their legal and commercial experience is particularly worthy of learning. This chapter focuses on the relevant foreign rules, especially numerous rules and consideration with full understanding of the relevant provisions of the United States and the EU. Sufficient comprehension is the prerequisite of possibility of transplantation.The fourth part is to explore trademark nickname regulation in China. Combining with the second and the third part of the study, it summed up the basic principles and ideas of our trademark nickname remedy and applied through the "Trademark Law", "Anti-Unfair Competition Law" and etc. Through layers of scrutiny and discussion, the formation of trademark nickname protection is the real balance of social equity and social justice. The trademark owner has forbidden right of trademark nickname. Meanwhile, keeping nickname from the public domain remain in the public domain, and not allow anyone to register it for himself.