LSJ Studio and Beijing Sunshine Intellectual Property and Legal Development Foundation (hereafter “SSIP”) started the research project “Conflict of legal system of trademark and trade name” recently.
The phenomena that the well-know business name is trademarked by others and that the famous trademark is registered as the name of an enterprise or the two intersect grow extremely serious in China. Public confusion has been caused as enterprises encroach upon the fame of others. Worse still, the reputation of some well-known enterprises has been damaged because of the quality problem of illegal business. Hence, LSJ Studio forms a research group to further study on the issue of the conflict of legal system of trademark and trade name. The research aims to explore the effective solution of the issue and put forward relevant suggestion on legislation and justice, which helps to achieve the goal of perfecting relevant legislation and the law enforcement of market surveillance authority and improving national business environment as well as solving the difficulties of the enterprises.
On the afternoon of November 17, the seminar on “The research on the conflict of legal system of trademark and trade name” was held by LSJ Studio and Shenzhen Nanshan Intellectual Property Protection Center in the multifunctional hall of the center, in order to gather opinions from related enterprises and experts. People from various walks of life participated in the seminar, including the experts of the studio Liu Chuntian, Suchi, Jin Kesheng, group members, entrepreneurs from Huawei, China Resources, Beijing Tongrentang (Group), Tencent, Mindray and Sina, judge of the Intermediate People’s Court of Shenzhen, Guangdong Province, and guests from Beijing TianTai Law Firm, Beijing TA Law Firm, Lung Tin Law Firm and Management Committee of Wanhuida Intellectual Property.
After the seminar, the group have spent over one month doing further research on the project and make a step forward, according to the participants’ suggestion and the practical problems reflected by the conflict of legal system of trademark and trade name, which were gathered in the seminar. The research has been carried out from the following aspects:
1. The group have sorted out legislative, administrative and judicial norms on the conflict of trademark and trade name and the administration of enterprise name registration since 1985, which include the legislative process of the conflict of trademark and business name, the development of the administrative norms on the administration of enterprise name registration and the conflict of trademark and business name, and the reform of judicial norms (including judicial guidelines and summary of experiences) on the conflict of trademark and trade name.
2. The group have checked around 400 effective judgments on dispute over trademarks and trade names in the past three years from representative courts, such as Supreme People’s Court, Higher People’s Court of Jiangsu Province, Intermediate People’s Court of Nanjing, Jiangsu Province, Intermediate People’s Court of Suzhou, Jiangsu Province, Higher People’s Court of Zhejiang, Intermediate People’s Court of Hangzhou, Zhenjiang Province, Higher People’s Court of Guangdong Province, Intermediate People's Court of Shenzhen, Guangdong Province, Guangzhou Intellectual Property Court, Higher People's Court of Beijing, Beijing Intellectual Property Court and Shanghai Intellectual Property Court. Besides, the group look for the legal basis and reasons for the judge among these judgements from the sequence of trademark and trade name.
3. The group have organized lawyers in the relevant areas to submit representative cases.
4. The group have observed and collected current status and opinions on the dispute between trademark and trade name from relevant enterprise.
5. The group have studied and mastered the dynamics of laws and regulations on the trademark and trade name from legislature and government in China. For instance, the notice on soliciting public opinion on “Implementation Measures for the Administration of Enterprise Name Registration (Draft for Solicitation of Comments)” released by the State Administration for Market Regulation in May 4 and “Provisions on the Administration of Enterprise Name Registration (Revised Draft)” passed by the regular meeting of the State Council on December 14.
The research group discussed about the work process mentioned above and arranged work plans for next stage during the phrased result briefing of the project on December 28. Members of the research group participated in the meeting, including Liu Chuntian, Suchi, Jin Kesheng, Li Yanrong, Ma Xiang, Zhang Xuan, Tian Long, Duang Yingzi, Shi Hui, Liu Shaojun and Li Fufu.
According to the current research result, the business environment is negatively affected as enterprises have to spend huge financial and material resources for rights protection under the circumstance that large amount of dispute on trademarks and trade names exists and that well-known trademarks and trade names are registered by other enterprises. The reasons are as follows: 1. The phenomenon is caused deliberately by some mercenary companies; 2. The enterprise registration and the trademark registration are charged by different departments in China, which results in the existence of the act of tort in legal registration; 3. The inconsistency of administrative approval and enforcement aggravates the issue; 4. The law has obscure standards for determining the trademark infringement.
Trademark and trade name, for enterprises, are the core competitiveness of enterprise development; for the market, the protection of trademark and trade name plays an important role in creating a good business environment. The protection of intellectual property is national strategy and president Xi Jinping has stressed its significance for several times, mentioned the experts of the group. Hence, how to solve the problem of legal conflict of trademark and trade name stands a big issue for legislative, administrative and judicial organ, rather than merely the problem of enterprises themselves. In the next stage, the research group will work in the following areas:
First, the group will collect typical cases on various kinds of conflict and further conclude and refine problems related to trademark and trade name by using big data. Besides, the team will clarify the seriousness of the conflict of trademark and trade name itself.
Secondly, the group will clarify the severe damage on the business environment by the conflict and point out the urgency to solve the problem with concrete analysis on the situation mentioned above.
Thirdly, the group is to analyze the distinction between China and other countries. Learning the others’ effective measure, the team will pick out concrete solution on the issue:
1. Change people’s knowledge on trademark and trade name. It is recommended that trademark and trade name should be uniformly defined as commercial signs.
2. Learn from foreign experience and combine it with current business environment in China. The team will further sort out the regulation on trademark and trade name from relevant countries and districts, and then put forward relevant legislative, administrative and judicial suggestion based on Chinese business environment.
The research group plans to hold another seminar in the first half of 2021. During that time, the group is going to finish the first draft on the project report after further summarizing the situation of the conflict of legal system of trademark and trade name and gathering ideas and opinions from all walks of life. In the second half of 2021, the group will solicit public opinions on the first draft. The final draft of the report is planned to be finished and legislative and judicial suggestion will be put forward to solve the issue from the institutional level.
SSIP will support this research project. People from all walks of life are welcome to pay attention to the research progress of this project.
微信公众号：北京阳光知识产权基金会
Copyright: The Beijing Sunshine Intellectual Property and Legal Development Foundation