Research On The Coexistence System Of Trademark Use In The Internet Environment

The trademark coexistence use system comes from the US "Tea Rose-Rectennas Doctrine",that is,trademark owners using the same or similar trademark in good faith in a distant market objectively,they can use their trademarks in the market separately.The Trademark Law promulgated in 1982 in China does not have the provisions on the use of coexistence systems for trademarks,however,in practice,there are many cases in which unregistered trademarks are used first in good faith.In the judicial practice,the court's judgment is not consistent.Some judges hold that the use of unregistered trademarks infringes the exclusive rights of the registered trademarks in respect of the theory of the protection of the registered trademarks;some judges hold that the prior unregistered trademark doesn't infringe the exclusive rights of the registered trademarks and they can use them within the original scope of use.Until the revision of the Trademark Law in 2013,the trademark prior use system was introduced and the "likelihood of confusion" was modified as the basis for trademark infringement judgment.So far,China has a trademark coexistence system in theory,but there is still no explicit expression concept of trademark coexistence.And with the development of Internet technology,the original use scope of China's trademark use coexistence system or the distant market concept of the United States has been broken.Whether the system of trademark coexistence use can enter the Internet is also a question.The problem of the system of trademark coexistence in the Internetenvironment arises.This paper aims to study the regulation of the use of trademark coexistence system getting involved in the Internet factors,draw on the legislative experience of advanced countries outside China,and combine the actual situation of China's trademark use coexistence system to propose feasible solutions to the corresponding problems.This article is divided into four chapters:Chapter One first introduces the historical situation of the coexistence of trademark use,mainly introduces the cases related to the emergence of the US "Tea Rose-Rectennas Doctrine" and the legislative status of the coexistence of US trademark use.At the same time,it also introduces the coexistence system and practice of trademark use in China,that is,the Article 59 of the Trademark Law,the system of prior use of trademarks,that is,the prior unregistered trademark doesn't infringe the rights of the exclusive rights of registered trademarks.However,China has given a certain degree of weak protection to the unregistered trademarks,which has made up for the drawbacks of China's system of protecting registered trademarks and established a coexistence system for trademark use in China.Chapter Two analyzes the theory of trademark coexistence system.Firstly,it analyzes the reasons for the existence of trademark coexistence system—similar trademarks will not make consumers confused or misunderstood,or consumers should tolerate a certain degree of confusion.The system of trademark coexistence use also reflects a certain principle of balance of interests,a certain degree of protection for the goodwill of trademark owners who have not previously registered the trademark.Secondly,it analyzes the trademark prior use system to the coexistence of trademark use,it analyzes the three features of the system of prior use of the trademark in China,the theory of the right,the theory of the legal interest,and the argument,but this article prefers the argument.Thirdly,it analyzes the restriction of the system of prior use of the trademark,because it needs to be considered when solving the problem of coexistence of trademark use.Although the prior use of trademarks in China can exercise the defense of non-infringement,it is still used within the original scope,and the trademark registrant can also request the trademark prior user to attach theappropriate difference identifier.Chapter Three mainly analyzes the challenges brought by the Internet to the coexistence system of trademarks.It mainly takes the advantage of the Internet in sales,marketing and advertising.It will break the distant market objectively and good faith subjectively,and the original scope of use is also difficult to define.Furthermore,through the cases in American judicial practice and the cases in Chinese judicial practice,the challenges brought by the Internet to the use of trademark coexistence system are analyzed.Chapter Four focuses on analyzing how the trademark coexistence system responds in the Internet environment.On this issue,the mainstream view is that the Internet is an extension of the real world,and this paper divides this issue into three small problems: First,the unregistered trademarks were obtained from the market consumers through traditional media,and then extended to the Internet.Second,the previously unregistered trademarks were completely recognized by the market consumers through the Internet.Third,the unregistered trademarks are partly obtained through the traditional media and partly through the Internet to gain market consumer awareness.In the process of analysis,this paper proposes the "nine elements" analysis method for the establishment of goodwill in the Internet environment.The "persistent impression of consumers" and the "coexistence of Internet trademarks" are the basis for the existence of trademark coexistence system under the Internet environment.This paper points out that the scope of original use of trademarks should not be limited to the original geographical scope.At the same time,it responds to the application of trademark coexistence system in the Internet environment,and the solution to how the trademark coexistence system survives under the Internet environment is to establish the "Internet trademark use coexistence" rule,that is,appropriate difference identification is attached.