Legal regulation of trade name

下面为大家整理一篇优秀的assignment代写范文- Legal regulation of trade name，供大家参考学习，这篇论文讨论了商号的法律规制。商号是区别不同商事主体的识别性商业标记，与商事主体的信誉密切相关，是商事主体无形财产的重要内容。为加强对商号的法律保护，规范、调整商事主体的商号使用行为，世界上许多国家均设置了专门的商号法律制度。英国在其商标法中规定了对商号侵权的救济与注册保护。美国、日本、瑞典、荷兰等国都有相应的法律来对商号进行规制。

Trade name is the personification of the business subject, specific form of expression, is the business subject in the operation, service activities to distinguish the specific name of other subjects, is also an important means of the business subject to commend their own, has a strong identification value. The concept of trade name has always been controversial, professor wu handong believes that trade name refers to the name of all business entities, that is, "trade name is the name of different business entities used by natural person, legal person and other subjects in industrial and commercial activities". The author thinks that when we understand the concept of trade name, we should consider the historical tradition of protection of trade name in our country, which is suitable for our country's characteristics, and also keep pace with The Times. Professor wu's view has a more reasonable side compared with other views, which highlights the identifiability, economy, exclusiveness and existence attached to a specific business and other characteristics of the firm, and takes the advantages of various theories, so I agree with professor wu's view.

Judging from the current legislation situation of the legal protection of trade name in China, the legal protection mechanism of trade name needs to be improved. Because there is not a single law in China to undertake the obligation to protect the trade name, there are only a few scattered legal provisions, and its own defects, the specific performance in the following aspects:

In China, there is no clear legislative interpretation on the legal nature of trade names, which leads to the lack of unified appellation and annotation of trade names by commercial business operators and even judicial organs, and the arbitrary substitution of terms such as "trade name", "trade name", "enterprise name" and "enterprise brand" in commercial activities and judicial practice.

In order to strengthen the legal protection of trade name, regulate and adjust the use of trade name of commercial subject, many countries in the world have set up special legal system of trade name. For example, in Germany, its trade name system is stipulated in German commercial code, limited liability company law, share law, cooperative law and other laws. The trademark law of the United Kingdom provides relief and registration protection for the infringement of trade name. The United States, Japan, Sweden, the Netherlands and other countries have corresponding laws to regulate the trade name. Compared with the above countries, China's regulations on the protection of trade names have been far behind the trend of international legislation, and has caused some adverse effects on the actual business activities.

Concerning the protection of well-known trade name, China's current legislation is not comprehensive, not complete, the relevant legal provisions are only scattered in some legal documents issued by the state administration for industry and commerce, there are many blind spots, such as the identification of well-known trade name, identification conditions and other issues.

As for the legal liability of trade name infringement, China only stipulates the civil liability, but does not stipulate the criminal liability of the tortfeasor and the administrative responsibility of dereliction of duty of the administrative organ, which is not conducive to improving the legal protection level of trade name.

On the road of China's socialist rule of law construction, we must adhere to the policy of "having laws to abide by, having laws to abide by, enforcing the law strictly, and going against the law", which is also the basic requirement for the formulation and practice of laws, among which "having laws to abide by" is the basis and premise. The contradiction between the imperfection of China's laws on the protection of trade names and the needs of the actual legal system is becoming more and more prominent. Therefore, we should base on the actual situation of China, inherit the reasonable traditional factors of China's trade name protection, and at the same time learn from foreign legislative experience to realize the localization of the transplant of laws. According to the specific situation of China, the author constructs the legal mechanism of China's trade name protection:

The concept of trade name and the nature of trade name right are quite confused in theory and practice in our country. Therefore, China should try to set up the section of trade name right in the chapter of intellectual property rights of civil code in the future, and position it in the system construction.

The ambiguous parts of the provisions on the administration of enterprise name registration shall be modified to eliminate inconsistencies, and a separate law regulating trade names shall be formulated as soon as possible, so as to improve the protection of trade names. In the chapter of intellectual property rights in the future civil code mentioned above, the concept of trade name is only a concept and the determination of legal status, which is abstract and not very operable. Therefore, a special separate law is needed to regulate it in practice. The main contents of the act shall include the acquisition, constitutive elements, assessment, investment, transfer, tort liability and management of the firm.

For the violation of the protection of the trade name law, not only should be investigated from the civil liability, but also from the criminal responsibility, administrative responsibility should be investigated for its responsibility, specifically, in the criminal law should be added "infringement of others trade name rights of serious circumstances, should be investigated for their criminal responsibility according to law"; The administrative law should add "administrative personnel who fail to regularly review the registration of enterprise names in accordance with the administrative regulations, or who fail to inquire about the relevant business names in the business name management system according to the legal procedures when registering the applicant, thus causing the applicant to objectively infringe upon the rights of other businesses, shall bear the corresponding administrative responsibilities". Only in this way can the lawbreakers' illegal behaviors be compatible with legal responsibilities, and the victims be fully and effectively protected, further reflecting the fairness and justice of the law.

In practice, China's current regional registration system of trade name causes a chaotic situation to the management of trade name, and also causes certain damage to the rights and interests of trade name owners, thus losing its original intention of legislation in a sense. Therefore, the current business registration management system needs to be improved, the specific recommendations are as follows:

The existing administrative departments for industry and commerce at all levels shall maintain the original organizational structure and still conduct the registration of trade names within their respective administrative areas. On this basis, the establishment of the province or the city within the scope of the trade database, the implementation of the national computer network, the state administration for industry and commerce on the provinces or cities of the administrative departments for industry and commerce registration of the trade "summary", and in a timely manner in the database published, put on record. In addition, to establish a unified national trade name retrieval system, in case the administrative department for industry and commerce at all levels across the country at any time make unified retrieval and query, namely: the registered trade name information resource sharing across the country, so as to avoid even within the same administrative areas in different administrative area exist a lot of the same firm business entity.

The trade name infringement generally adopts the administrative protection, its advantage lies in the procedure is simple, the efficiency is high and easy to carry out. But, its blemish also depends on easy generation arbitrariness. Meanwhile, according to TRIPS, administrative protection must set up necessary judicial remedy procedure. Therefore, in order to overcome the arbitrariness of administrative protection and keep in line with international rules, necessary judicial relief procedures must be added in the legislation of trade name. In judicial practice, if the parties with respect to its registered trade name dispute with others, and filed a civil tort litigation, requesting the court ruling parties revoke the registered trademark or trade name, the people's court, such as that the defendant, fake others trade name used by a firm to sentence the defendant to stop using the original trade name and change a new name, at the same time, by a people's court can also trade name of tort liability to pay compensation.

First of all, law should determine its standards, making the selection system, the selection of the control program of the famous trade name and famous firms announcement system, and standards should be comprehensive, in addition to business history, the popularity of a certain area outside, still should consider enterprise product output, sales, market share, ranking the counterparts and other factors; Secondly, the regional and trade restrictions on well-known firms should be eliminated. That is, well-known firms enjoy special protection rights throughout the country, not just in one or several regions enjoy; Finally, well-known firms apply the principle of "right first" unconditionally. The holder of a well-known firm shall have the right to prohibit the use of the said firm as a registered trademark throughout the country.

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