Structural Division Of Labor And Coordination Of Trademark Protection System From The Perspective Of Distinction Of Rights And Interests

The shortcomings of the trademark registration system and the lack of clarity of the concept of trademark rights in the legislation have led to the disorder and confusion of the trademark protection system itself.The current distinction between registered and unregistered trademarks,as well as the operational problems caused by the joint operation of trademark and anti-trademark laws,have brought certain troubles to the trademark protection system in terms of identifying what rights and interests are protected,what kind of protection they are subject to,and how to coordinate the protection.In order to solve the above problems,this paper tries to take "rights and interests" as the core skeleton and construct and coordinate the trademark protection system with the theory of dichotomy between rights and interests in the field of civil law infringement.According to the criteria of "attribution,exclusion,publicity and legality" for rights and "not illegal" for interests,the trademark protection system has already formed a structural framework of different protection modes,and the protection of trademark rights is static protection,the core of which is to judge whether the act The protection of trademark rights is a static protection,the core of which is to determine whether the act infringes the distinctive interests of the registered trademark in the approved goods or services;while the protection of interests is a dynamic protection,the concern is whether the act is culpable,such as infringing the order of trademark registration or the order of legitimate competition.The coordination of the trademark protection system is divided into two categories,one is non-conflict of interest,such as prior rights,which can be resolved by simply clarifying the scope of the protection of rights or interests according to the aforementioned content;the second category is conflict of interest,which refers to the situation where both are legitimate,but the exercise of which is frozen.In the conflict of rights and interests,the general rule that rights take precedence over interests is followed in principle,but the general ranking is also subject to the basic principles of honesty and trust,public order and morality,etc.If there is any violation,the principle of proportionality should be used to make new trade-offs and measurements.In the case of conflict of interest,the value should be measured in conjunction with the purpose of trademark legislation and general principles.