Research On Legal Issues Of Conflict Between Name Trademark And Prior Name Right

This paper focuses on the analyses of different types of cases in the practice of the conflicts between name trademark and prior name right under "prior right"and "adverse effect clauses",combining with the relevant regulations on the conflicts between registration of names and trademarks and the conflicts of prior rights in different legal systems at home and abroad and drawing lessons from reasonable extraterritorial system,aiming to provide some suggestions for name trademark infringement in China.Chapter 1 first defines some related concepts of name trademark,name right and prior right.It then draws analyses on the causes and reasons of the phenomenon that name trademarks are being infringed.Last,based on the trademark’s individual characteristic and present legislation defects,it analyzes the conflicts profoundly between name trademark and prior name right.Chapter 2 analyzes the conflict regulations and deficiencies of trademark a name and prior right.In the first place,with regard to the applicable conditions of prior right in "trademark law" article 32,it analyzes and points out some drawbacks on it.Then it demonstrates profound analysis on "trademark law" article 18:other adverse effects.Last,it summarizes the applicable conditions of trademark applicant from the angel of anti-unfair competition law.The first part of Chapter 3 analyzes the identification criteria of name trademark damage to the prior name right,including two aspects:subjective elements and objective element.In the specific damage identification,it is necessary to comprehensively judge whether the applicant of trademark registration’s behavior constitutes the infringement of the prior name right considering the subjective and objective factors,this part will be illustrated with different types of cases.Second part of Chapter 3 takes cases of "Trademark of Zhao Wei","Guo Degang""Lu Xun" and "Jordan" as examples,analyzing the phenomenon that trademark being robbed according to different situations and perspectives.The fourth Chapter analyzes the relevant provisions of trademark registration of foreign countries and the introduction of relevant laws and regulations of the USA,the UK,Germany and Japan,as well as the measures taken by these countries to resolve the conflicts between the name right and trademark right,attempts to shed light on the resolutions of similar problems.In chapter five,specific legal thinking and corresponding improvement are made on the status quo and existing problems of the trademark registration,including suggestions on trademark legislation,conception of Commercialization rights as well as the use of Principle of good faith.