From Lex Lata To Lex Ferenda:on The Construction Of Trademark Coexistence Regime In China

Trademark coexistent was originally evolved from the doctrine of honest concurrent use in common law,after progressed by the United States,Britain and other countries,international organizations and countries around the world have legislation on the concurrent use of trademarks.In our country’s market,the coexistence of identical or similar trademarks has become very common,more and more cases were finally judged as trademark coexistence in judicial practice.After our country’s trademark law was modified in 2013,the determination of trademark infringement changes from "absolute approximation" to "confusion approximation",priority right regime is also imported,therefore leaves the legitimacy space for trademark coexistence.Therefore,the phenomenon of trademark coexistence is already accepted as objective reality in china.But on the other side,it is still a problem researched in theory and judiciary,trademark coexistence mostly is a ambiguity region in legislation,which is mainly argued with its legitimacy from interpretative theory’s perspective.In other words,trademark coexistence has no position in our country’s trademark law,and even normative regulation.For protecting honest trademark users’ interest,maintaining a level playing and efficient market,providing specific legal grounds for judiciary,guaranteeing judicial adjudication’s unification and authority,it is meaningful to inspect trademark coexistence systematically,verify theoretical basis and set up rules,no matter in theory or practice.This thesis demonstrates the construction of trademark coexistence regime from four parts:The first part discusses on fundamental issues of trademark coexistence with three sections.Firstly,make a basic demarcation of trademark coexistence.The definition is that in the same legal domain,the same or similar trademarks on the same or similar goods/services coexist legally due to the agreement of different market entities or the existence of non-imputable reasons.Its constituent elements contains four points: in the same legal field;several different subjects;there is an agreement between the parties or the existence of non-attributable causes;the use of the same or similar trademark on the same or similar goods/services.Secondly,the paper teases out main forms of trademark coexistence as below four kinds: the coexistence between unregistered trademarks,the coexistence between unregistered trademark and registered trademark,the coexistence between registered trademarks,and the coexistence between registered trademark and commercial mark.Finally,illustrates four reasons including history problems,results of cooperation,oversight in examination and expansion of trade accordingly,which cause trademark coexistence.The second part investigates available lex lata on the relevant stipulation of trademark coexistence.Firstly,investigate international legislation and typical extraterritorial legislation including the United States,Britain,EU and Germany.Secondly,investigate our country’s available relevant statutes in trademark law,judicial explanations,judicial documents and other laws.Then compare the concept between co-ownership and coexistence,define the juridical status of likehood confusion,clarify the relation with trademark leasing and license.Finally,conduct the basic conclusion: the absence of coexistence system in China’s trademark law,the relevant provisions for coexistence are imperfect and standards are vague in practice.The third part analyzes the reasonability of trademark coexistence regime by regressing the nature of trademark right.Firstly,from the perspective of trademark law’s purpose,principle and value to analyze,this paper holds that the trademark law mainly protects the interests of the trademark owner and the business activities themselves,the interests of consumers and the public is just attached outcome,meanwhile,trademark coexistence conforms to the principle of benefit balance,and embodies the legal value of fairness and efficiency.Secondly,discuss the conformance with the nature of trademarks and trademark rights.Regarding trademark as an immaterial property which coagulates goodwill,it is necessary for law to protect the goodwill accumulated by the market subject under the operation of honesty and credit.In essence,trademark right is a kind of private right,if the obligee does not mind the use of the conflicting trademark by others and who are blameless,coexistence shall be allowed.Finally,explain the conformance with international trademark legislation’s general practices and actual demand for market management.The fourth part proposed the lex ferenda for constructing our country’s trademark coexistence system.Firstly,clarify the core contents of trademark coexistence: considering the core elements of the coexistence of trademarks are the market entities’ autonomy will and non-attributable causes.Instead of the requirements for judging similar trademarks,the likehood of confusion is just as one of the requirements for judging trademark infringement.Meanwhile,correct the three dislocations on the likehood of confusion.Acknowledge trademark coexistence agreement,besides it shall have the effect of a general contract,it could hinder the prohibition of trademark registration.Secondly,design to the trademark coexistence system form the entity and procedure,modify number 30,33,45 clauses in trademark law,allow applicant’s submission of “approval letter” or trademark coexistence agreement in the procedure of Application for trademark registration,and add the examination procedure.Finally,put forward the suggestion on the usage standard of trademark users.