2018On Protection System of the Domestic Trade Name Rights

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摘要：商号一直是我国知识产权保护的弱点，但商号在我国有着广泛的应用，并且具有巨大的商业利益，因此，我国的商号保护制度需要加强和改进。本文主要从商号的保护重要性和商号保护的具体措施的改进进行论述。 Abstract: Trade name has always been the weakness of the domestic intellectual property protection, but it has been widely applied in our county and promises tremendous profits. The protection system of our country’s trade names, therefore, needs to be improved and strengthened. This paper mainly elaborates the significance of trade name right protection and improvement of specific measures to protect trade names. 关键词：商号；人身权保护；企业名称登记 Key words: trade name; protection of personal rights; registration of company names Overview of the Domestic Protection System of Trade Name Rights Trade name, an integral part of company name, is a specific or exclusive name and a distinctive mark that one business entity distinguishes itself in business activities from other business entities. Playing a crucial role in corporate operation and development, trade name claims to be the company’s business card to some degree. Although our country has established a legal system to protect trade names, there still exist quite a few loopholes. In the “Earth Products China” trade name dispute as of April, 2003, the plaintiff Earth Products China Ltd. earned good reputation over years of operation. Afterwards, the defendant Beijing Earth Products China Ltd. registered in Beijing, which was accused by the plaintiff of unfair competition due to infringement on trade name rights. Claiming that the exclusive right of company name refers to that of the entire company name, which does not involve the four components of the above-mentioned administrative region, shop name, industry name and organization format, the defendant regards his counterpart’s accusation lacks legal ground. The author hereby holds that the controversy of the case lies in whether the defendant infringes the plaintiff’s legitimate rights―the trade name of Earth Products China Ltd.. Currently, there are no specific laws to protect trade name rights in China, only legal provisions to protect company names. Laws regarding protection of trade name rights are incorporated into five to six major department acts and relative rules and regulations are miscellaneous and complicated. Provisions in relation to trade names in the domestic legal system mainly include the General Principles of the Civil Law, Administrative Regulations Governing the Registration of Legal Corporations, Measures for the Implementation of Administration of Company Names, Regulation on the Administration of Company Registration, Product Quality Law and Anti-Unfair Competition Law, all of which constitute the domestic legal system to protect trade name rights. The 99th article of the General Principles of the Civil Law has the following stipulations regarding personal rights, part of civil rights: the legal person, individual business and individual partnership are endowed with name rights; the legal person, individual business and individual partnership have the right to use and transfer their trade names in accordance with the law. This indicates that the domestic basic civil law regards trade name right as one type personal right. Domestic laws regarding protection of trade name rights merely confine to protection of personal rights, but not protection of property rights or intellectual property rights. Protection of trade name, an intellectual property right, is derived  from the Paris Convention, the first article of which stipulates that protection of industrial property rights targets at patents, utility models, industrial exterior design, trademarks, service marks, trade names, mark of origin or appellation of origin and prohibition of unfair competition. The Convention also stipulates that“trade names shall be protected by all the members in the alliance without application or registration no matter whether the trade name constitutes the trade mark or not”. The Convention particularly prohibits any behaviors to obscure competitors’ business premises, commodity or industrial activities, which may be caused by adoption of identical or similar company names, trade names, shop names, trademarks and other business marks. The member countries are required to adopt proper measures to effectively deter behaviors infringing business marks such as trade names for unfair competition. After promulgation of the Paris Convention, the World Intellectual Property Organization developed the Model Law Regarding Trademark, Trade Name and Anti-Unfair Competition Behaviors in Developing Countries for developing countries: it is illegal for a third party to use others’ trademark as a trade name, trademark, service mark or collective mark, which may cause misunderstanding among the general public due to the use of such similar trade names or trademarks. Various indications suggest that trade names shall be protected by written laws and protection of trade names shall not merely confine to personal rights. So far, the Regulations on Administration and Protection of Trade Names in Zhejiang Province is the sole regulation in this regard in China, which is apparently inadequate and is inconsistent with other international treaties. Causes of Trade Name Disputes in China China’s existing registration and administration system of company names has strict geographical limitations, which stipulates that company names can only be protected within the areas under the jurisdiction of the registration authorities. Outside the specified area, the shop name contained in the company names for different sectors can be exactly identical or free of any restriction. Such a system featuring distinctive characteristics of planned economy is not in line with the requirement for the development of market economy. The General Principles of the Civil Law stipulates the personal right feature of trade name and its property right feature only rests in discussions and implications in the law sphere. Trade name is not explicitly considered as an intellectual property right, which reflects that the existing system fails to pay due attention to the property right feature of trade name and to the intangible asset of trade name. As neither the General Principles of the Civil Law nor specific provisions or relevant judicial interpretations specializing in company names have offered provisions about the concept of trade names, issues about the legal nature, status and protection of trade names are quite blur, which makes the same trade name can be used by different regions or companies from different sectors. As a result, the recognition value of trade names is in essence ignored or underplayed. Suggestions to Improve Legislation for Trade Name Protection The domestic provinces should be encouraged to attempt to develop proper local laws and regulations for protection of trade name rights, as a nationwide law revision or formulation of a slip law consumes quite a long time and more and more trade name right disputes need to be settled. With both cost and effectiveness taken into account, provinces may more rapidly tailor trade name right protection laws and regulations based on local conditions. For instance, the unveiling of the Provisions on Enterprise Commodity Administration and Protection in Zhejiang Province is a product generated in the adaptation of social development and market demands. Ehrlich, an Austrian jurist once commented “the core of legal development does not lie in legisla- tion, science of law or judicial judgment, but the society itself.” To develop the Regulation on Protection of Trade Name in consistent with international practices and to establish trade name right laws and regulations under the protection of intellectual property law shall be based on the status quo. As direct formulation of Trade Name Law lacks mature condition, China needs to draw lessons in terms of legislation experience and legislation mechanism from such foreign countries as Switzerland and the Netherlands and to base on the domestic status quo for formulating the Regulation on Protection of Trade Name, which will grant special protection to trade names and specify the concept of trade names and that trade name right as well as exclusive rights of renowned companies’ trade names are protected by laws. China also needs to adjust various social relations generated in the acquisition of trade names and execution of rights and to determine the legal nature of trade name rights. In the mean time, China needs to amend other laws such as the Anti-Unfair Competition Law so as to strengthen protection of trade names. In the revision of the Civil and Commercial Law, the content of trade names should be specified in the format of laws and regulations. For instance, Germany’s laws and regulations for trade name right protection are mainly incorporated in the 37th provision of the Germany Commercial Code. The first article of this provision stipulates: in case that the doer uses trade names which he has no right to use in accordance with the provision hereof, the registration court shall force the doer by means of penalties to stop using the trade name hereof. The 2nd article stipulates: in case that one uses an unauthorized trade name and infringes the rights of the trade name owner, the trade name owner hereof may require the former to stop using the trade name hereof; in the mean time, the trade name owner still holds the right to claim for damage compensation in accordance with other provisions. Japan also has spe-  cific stipulations with regard to trade names in its Commercial Code. Meanwhile, in the reform and improvement of company name registration and management system, a uniform inquiry system is recommended to be launched in China. When pre-registering company names, local administrative bureaus for industry and commerce need to search in the central inquiry database via the computer network in a bid to avoid identicalness or repetition of the same company name in the alike sectors across the country. Besides, a cross-searching system should be established for company names and registered trademarks, in particular for reputed trademarks and famous trademarks. (Author: from East China University of Political Science and Law, Shanghai, 200042)