Causes of conflict of rights between trademarks and trade names
The main reasons for conflicts of rights between trademarks and trade names are as follows:
1. There are similarities in the composition of trademarks and trade names (both can use Chinese characters) and have the same function (both are carriers of goodwill).
A trademark is a sign used by producers and operators on their goods or services to distinguish the source of the goods or services. In short, a trademark is the goods or services The basic function of a logo is to distinguish different goods or services. According to Article 8 of my country’s Trademark Law, “any visible mark that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numbers, three-dimensional signs and color combinations” , as well as the combination of the above elements, can be applied for registration as a trademark..." It can be seen that the constituent elements of a trademark are quite extensive, and among these elements, characters have become one of the more commonly used constituent elements of trademarks because they have the advantages of clear expression of meaning, good visual effects, and easy recognition and memory.
Trade name is the common name for the font size in the name of the enterprise ③. It is a commodity producer or operator. It is used in order to indicate the characteristics that are different from other commodity producers or operators. A specific name used in commercial transactions. According to Article 7 of the "Enterprise Name Registration Management Regulations" and Article 9 of the "Enterprise Name Registration Management Implementation Measures" issued by the State Administration for Industry and Commerce, an enterprise name shall consist of administrative division, trade name, industry, and organizational form in order. Legal , except where otherwise provided by administrative regulations. Since the company name is the code name of the company, and its most basic function is to distinguish other producers or operators, the company name is unique and is not allowed to be the same. Within the same administrative region, the administrative division, industry, and organizational form of the company name components can be the same, but the only thing that is not allowed to be the same is the trade name. It can be seen that the trade name is not only one of the legal components of the enterprise name, but also the most critical core part. Only it has real identification value. Ordinary consumers will only remember the company's trade name, but rarely the complete name of the company. According to Article 8 of the "Enterprise Name Registration Management Implementation Measures": "Enterprise names should use Chinese characters that comply with national standards and must notUse Chinese pinyin letters, Arabic numerals...". As a part of the company name, the trade name should of course also use Chinese characters. Therefore, from the perspective of the composition of trademarks and trade names, there are obviously more elements that constitute a trademark than those that constitute a trade name. However, they The only common constituent elements are Chinese characters. This means that any trade name that meets the conditions stipulated in the Trademark Law can be registered as a trademark with the approval of the Trademark Office. Similarly, an enterprise can also turn a registered trademark into its own after approval and registration by the industrial and commercial administration department. Trade names. Although trademarks are used to distinguish different goods, and trade names are used to distinguish different companies, since goods are produced by companies, and our country allows some industries to appropriately simplify their names④, there are many simplified names As a trade name, consumers usually associate trademarks with trade names, causing confusion.
At the same time, trademarks and trade names not only have the most basic distinguishing functions, but also Through long-term operations, enterprises have accumulated business reputation, which can attract consumers and bring good economic benefits to the enterprise. For ordinary consumers, a trademark or trade name represents the business reputation of an enterprise.
It is this similarity in composition and the same function that provides the possibility for the occurrence of rights conflicts.
2. The approval agencies and procedures for trademark and trade name rights are different, which is also the fundamental reason for the conflict of rights. It is manifested as:
(1) Rights approval Different agencies
What is commonly referred to as trademark rights is the exclusive right to trademark, which is the exclusive right to use the trademark owner's trademark. This exclusive right to use is Exclusive and exclusive rights, others may not use them without the permission of the trademark owner. This means that trademark rights are absolute rights, not the right to use trademarks in the general sense. Any organization or individual who needs to obtain the exclusive right to use a trademark should Apply for trademark registration to the Trademark Office of the State Administration for Industry and Commerce. The Trademark Office of the State Administration for Industry and Commerce is also the only agency responsible for trademark registration approval in China.
For trade name rights, China Although there are no clear provisions in the current law, the Civil Code stipulates the right of enterprise name. The right of enterprise name refers to the exclusive right that an enterprise enjoys in accordance with the law for the business distinguishing marks it uses or registers. Since the trade name is the name of the enterprise, In part, therefore, trade name rights are subordinate to name rights, and the legal provisions on name rights also apply to trade name rights. At present, China implements a hierarchical approval system for enterprise name rights, that is, enterprise names are determined by the industrial and commercial administration bureaus at all levels based on the names used in the names. The name of the administrative division is subject to hierarchical approval. The name of the administrative division used in the name of the enterprise will be approved by the industrial and commercial bank of the level.Approved by the Administration Bureau. National enterprises shall be approved and registered by the State Administration for Industry and Commerce, and other enterprises shall be approved and registered by the local provincial, municipal, and county industrial and commercial bureaus. Enterprise names that use the names of municipal districts and municipal administrative divisions shall be approved by the Municipal Administration for Industry and Commerce. Enterprise names used in conjunction with provincial, city, and county administrative divisions shall be approved by the industrial and commercial administration bureau of the highest-level administrative region. The right to the company name is obtained after approval and registration.
It can be seen from this that although the approval of trademark rights and trade name rights is exercised by the industrial and commercial administrative agencies, the approval of trademark rights is managed by the national industrial and commercial administration. It is exercised by the Trademark Office of the State Administration of Industry and Commerce, while the approval power of trade names is exercised by the industrial and commercial administration bureaus at all levels across the country. Due to the different approval agencies for trademark rights and trade name rights, and currently the resources of both parties cannot be shared, trademarks and trade names with the same words are The simultaneous existence of .
(2) The procedures for rights approval are different
In my country, trademarks are registered centrally. The bureau will accept and review uniformly. Once a trademark is registered, it will be valid nationwide.
Trademark registration generally needs to go through the following procedures: the trademark applicant files an application, and the Trademark Office will conduct a preliminary review after receiving it to check whether it is the same as the registered trademark in the same industry nationwide. or similar. After preliminary approval, an announcement will be made. During the announcement period, any unit or individual may raise objections. If no objection is raised by the announcement period or the objection cannot be established, the registration will be approved, a trademark registration certificate will be issued, and the trademark will be announced. It can be seen that obtaining exclusive rights for a trademark requires a strict review process to ensure that the trademark has exclusive rights for similar goods or services. It is this strict procedure that has greatly reduced the number of registrations for similar goods or services nationwide. The probability of occurrence of the same or similar trademark.
The procedures for business name approval are much simpler in comparison. Roughly speaking, the industrial and commercial administration at the corresponding level will search whether there are identical or similar enterprise names in the administrative region based on the name that the enterprise intends to use. If there is no similarity, the enterprise will obtain the exclusive right to use the name, and its trade name rights will also be generated at the same time.
The approval agencies and procedures for trademark and trade name rights are different, which is also the fundamental reason for rights conflicts. If you have any other questions, you are welcome to seek legal consultation on the Legal Savior Network website.
No comments yet. Say something...