The Research On The Settlement Of Right Conflict Between Trade Name And Earlier Trademark

The article 58 of trademark Law stipulates that people who use the same tradename with others' earlier trademark and misleads the public, should bear legal liability. Notwithstanding this provision,the law and the judicial interpretation concerned didn't ecplain the terms of "using" and "minsleading". When conflicts occurs between tradename and earlier trademarks in judicial practice, what circumstances constitute an infringement of trademark rights or unfair competition triggers great controversy. Based on the "Jialing" trademark case, this paper explores the three focuses of dispute between the tradename and the earlier trademark. The three issues are the constituent elements, the qualitative study of the legal action, and the legal liability of the conflict between the tradename and the earlier trademark. This paper is divided into four parts.The first part is to raise questions. By the analysis of "Jialing" trademark case, three spotlights have been put forward in the tradename and prior trademark rights conflicts: elements of rights conflict, legal qualitative of rights conflict, legal liability of rights conflict.The second part is the constituent elements in the conflict between tradename and earlier trademark rights.There are two elements in the rights conflicts between tradename and earlier trademark:the objective existence of the earlier trademark, but as a result there is a likelihood of confusion. To determine whether there is objective earlier trademark should take the application date for the tradename as a reference date; the earlier trademark rights should include the right to the trademark application, and earlier trademark rights should cover the region and industry affected by the brandawareness. To determine whether there is the possibility of confusion, the following factors should be mainly referred to:the scope of the relevant public, similar degree between the tradename and trademark, the use method of the tradename, popularity degree and brand awareness of the trademark,the associating degree of marked goods or services marked by trademark and tradename, and tradename owners' subjective malicious extent.The third part is a legal qualitative for the rights conflict behavior between tradename and earlier trademark. Rights conflict will be under empirical research with the typical cases,to explore two kinds of legal qualitative for the rights conflict between tradename and the earlier trademark,namely trademark infringement and unfair competition and to further analyze two qualitative for judgment criteria and constituent elements, to define the result element of trademark infringement and unfair competition as likelihood of confusion. In addition, it makes it clear that the behavior element of trademark infringement is to use trademarks, while the behavior element of the unfair competition is unjustifiable standard use. Finally, the four cardinal principles to deal with the rights conflict between tradename and earlier trademark are put forward with prohibiting confusion as the goal, protecting the earlier rights as a prerequisite, following good faith as the cornerstone, and maintaining the balance of interests as the method.The fourth part is about the legal responsibility of right conflicts between the tradename and earlier trademark.It mainly expounds two implementation methods for under stopping the infringement, namely regulating the use and stopping the use,and further analyzes the applicable cases for these two implementation methods; puts forward that standard use should be given priority to avoid confusion under goodwill conflicts; when standard use is not sufficient to avoid confusion, stop using should be prudently applied.In addition, in order to balance public interests among the trademark owners, tradename owners and the community, it recommends the legislature should introduce the right failure system to resolve the right conflict issues between earlier trademark and tradename.