Give guidance to reading
1. The conflict between trademark right and prior copyright is based on the protection of the original expression of the work, rather than the protection of the commercial interests of the specific expression in the work.
2. The conflict between trademark right and prior copyright should be put in the perspective of copyright infringement, distinguishing between thought and expression, rather than identifying the source. Define originality, not salience. Consider rational use rather than confusing judgment.
3. The conflict between trademark right and prior copyright should be based on the premise of administrative remedy in the stage of trademark registration and holding. Commodity sale, propaganda stage, can adopt civil tort to deal with.
4. If the conflict between trademark right and prior copyright is aimed at protecting the original expression of the work, it is not appropriate to take the responsibility to stop infringing or revoke the trademark.
Article 9 of the Trademark Law stipulates: “The trademark applied for registration shall have distinctive features which are easy to identify and shall not conflict with the legitimate rights acquired by others.” Article 32 further stipulates: “The application for registration of a trademark shall not prejudice the existing prior rights of others, nor shall it be preempted by improper means to register the trademarks that others have used and have an influence on.” The prior rights referred to in these two provisions covered various forms of rights, and copyright was one of them. Then, the question is, what kind of understanding should be made to the connotation of copyright in the conflict between the post-trademark and the prior copyright, what is the criterion for judging the conflict, and how to determine the way to assume the responsibility?
In view of this, the author will understand the connotation of prior copyright from the following aspects, in order to clarify the related misunderstandings.
The connotation of prior copyright in conflicts of rights
The object of copyright is work, and the object of trademark is the mark. To identify the trademark infringement of prior copyright, through the originality of the work, thinking and expression of dichotomy, substantive similarity, reasonable use of standards to judge. In this case, the purpose of resolving the conflict of rights is to protect the originality of the work.
For example, article 19 of the provisions of the Supreme People’s Court on Several Issues concerning the Trial of the Administrative Cases of the Confirmation of the Right to Trademarks performed on March 1, 2017 (hereinafter referred to as the Provisions on Authorization and Confirmation of Rights). Where a party claims to sue a trademark for damages to its prior copyright, the people's court shall, in accordance with the relevant provisions of the copyright Law, if a party claims to sue a trademark for damages to its prior copyright, the people’s court shall, in accordance with the relevant provisions of the copyright law, decide whether the object claimed constitutes a work, whether the parties concerned are copyright owners or other interested parties who have the right to claim copyright, and whether the trademark litigation constitutes infringement of copyright, etc.
However, in the conflict of copyright and trademark right, if the copyright object itself embodies some significance, it conflicts with the significance embodied in the object of trademark right. Can this salience be included in the scope of prior copyright? For example, a particular creative expression of a work, such as the title of a work, the name of a character in a work, the characteristic words in a work, etc., may easily lead to the identification of a source, resulting in a conflict of trademark rights.
In this regard, on December 25th 2001, the Department of Copyright Administration of the National copyright Administration made the right division (2001) No. 65 On the Reply of the Name of the Literature should not be protected by Copyright Law. Whether the title of the work is protected by the copyright law depends on whether the name is original or not. If there is originality, it should be protected. And it is more appropriate for the title of the work to be adjusted by the Anti-unfair Competition Law of the People’s Republic of China.
For example, in the case of copyright infringement of the play name of Five Golden Flowers, the higher people’s Court of Yunnan Province has heard that: “A work protected by copyright law, in addition to being original, must be able to express opinions, knowledge, ideas, feelings and other contents independently, so that the broad audience can understand certain information from it. It should not be a simple addition of words.” 
In the case of Kung Fu Panda, the right holder also claimed the copyright of the name of the film “Kung Fu Panda KUNGFUPANDA”, but the commercial judge did not support it and later abandoned the claim.
The reason for this phenomenon lies in the fact that the right to commercialization is not explicitly stipulated in the current laws of our country. In dealing with such cases, it is natural to parcel the core of commercialized rights with the appearance of prior copyright.
In fact, this conflict of rights has been divorced from the context of the conflict between copyright and trademark rights, and should be included in the category of anti-unfair competition law. That is to say, a particular expression of originality does not belong to copyright, it can not only consider the rights and interests of commercialization, but also be regarded as “the special name of well-known goods”. For example, in the case of “Sunflower Baodian”, the court of first instance considered that a work’s name could become a distinctive name of a well-known commodity and particular words in the work could be protected as commercialized rights and interests. 
What needs to be further clarified is: what category should the conflicts of rights arising from the characters in the works fall into?
Article 22 of the provisions on authorization and confirmation of rights stipulates: “Where the parties claim that the trademark dispute is infringed on the image copyright of the role, the people's court shall examine it in accordance with article 19 of these provisions.” Namely according to the copyright and trademark rights conflict to understand.
However , the character image of the work is not only a creative expression, but also serves as an identification source. It should not only be brought into the conflict of copyright and trademark rights, but also be considered as the conflict between the right of commercialization and the right of trademark, and put into the category of anti-unfair competition law.
For example, in the “Crayon Xiao Xin” copyright infringement case, the plaintiff believed that the actions of the defendant Enjia Company constituted an infringement of the plaintiff’s copyright, and also affected the plaintiff’s authorization business and commercial promotion activities for the animation image of “Crayon Xiao Xin”, causing irreparable huge losses to the plaintiff.  The protection of the object of the right is aimed at promoting the authorization business and business promotion of the animation image, rather than simply protecting the original expression. The court only carries on the protection by the copyright, is too one-sided.
Therefore, the author believes that the conflict of rights in order to protect the original expression of copyright belongs to the category of copyright. The conflict caused by the distinctive features of the work belongs to the category of anti-unfair competition law.
The understanding of “Judgment Standards” in the conflict of rights
As mentioned above, the conflict between copyright and trademark right can be judged from the copyright of the work, the substantive similarity standard, the right of ownership, the reasonable use of the system and so on.
Copyright includes the dichotomy of thought and expression and the judgment of “originality”. Copyright law protects the expression of thought, not the thought itself. For the distinction between thought and expression, the most famous is the “abstract standard”, that is, the more abstract, the more universal, the closer to the idea. The more specific, the more specific, the closer to expression. Based on this distinction criterion, in the conflict between the copyright of the earlier copyright and the trademark right, in addition to the works of art, the written works tend to be universally expressed and easily fall into the mind.
Need to mention that, in the case of Qiong Yao prosecuted Yu Zheng in the first instance verdict, the court held that “the distinction between thought and expression depends on whether these plots and the whole of the plot belong to a general, general narrative pattern, or to a certain extent sufficient to produce a unique appreciation experience that perceives the source of a particular work.” 
This could be to use the right to commercialize as an expression in the copyright, to achieve some kind of function of identifying the source. For example, in the case of “Kung Fu Panda”, the court held that the public concerned had projected their perception and emotion of the film onto the name of the film or the name of the film’s character. And empathizes with the goods or services that are associated therewith, enabling the obligee to obtain the commercial value and the trading opportunities beyond the distribution according to the film, then the film name or the movie character image and its name may constitute the prior commercialization right. 
Originality is also the core element of copyright. In the concrete judgment, the originality of the work should not be confused with the significance. Indeed, the stronger the originality, the stronger the inherent significance. However, the significance is also affected by the popularity. The stronger the visibility, the stronger the significance. The originality is not the case, only emphasis on “independent creation and the most innovative” standard.
At the same time, copyright is also restricted by the system of rational use. That is, to balance the conflict between the freedom of expression of the public and the protection of their rights. If the trademark is a reference to the content of the work and belongs to the freedom of expression of the public, there will be no conflict. However, this limitation is proposed from the perspective of the copyright law , not the trademark law perspective. For example, the expression in works is widely disseminated, quoted in many contexts and scenes, and the second meaning that does not relate to the origin of the work appears. Even into the universal appellation in a certain field, the problem of copyright infringement still exists.
However, put into the competition law perspective, it is impossible to constitute a conflict. Taking the case of “Sunflower Treasure” as an example, the majority opinion of the court of first instance held that “Sunflower Treasure” was a special word in Jin Yong’s novel The Legendary Swordsman. The novel The Legendary Swordsman has been republished and adapted for film and television works many times. It has a high popularity and reputation in the field of literature, film and television, as well as in the minds of ordinary consumers. “Sunflower treasure” is also known to consumers and has a certain popularity. However, the “Sunflower treasure” has become a popular term that can be used to refer to advanced strategies or manuals for a job or task. In such cases, if it is included in the protection of prior commercial rights and interests, to a certain extent, it damages the public's reasonable expectation of the interests of the law and limits the freedom of expression of the public. To curb the negative effects of trademark registration system should not be at the expense of the above-mentioned interests. 
Procedural relief and accountability in conflicts of rights
This involves two questions: what relief procedures should be performed when a registered trademark infringes upon the prior copyright? In the conflict of rights, when the conflict is established, should stop infringement or revoke the trademark as the way to assume responsibility?
As for the first question, the judicial practice is divided into two stages: application and use, in different ways.
In the application stage, the administrative relief of trademark should be the premise. For example, in response to the “one dollar crocodile case,” the Shanghai higher people’s Court held that, In the trademark authorization procedure, if a party claims to protect the copyright only because of the use of his work when another person applies for the registration of a trademark, it shall be settled through the relief procedure such as the objection stipulated in the trademark law. In the case of objection has been raised, the parties and others to use their works to apply for a registered trademark and the first trial announcement constitute infringement on the grounds that the infringement, civil proceedings, the people’s court should not accept. 
In the case of trademark sales, conflicts arising from the use of trademarks in the publicity process shall be dealt with in civil tort. In view of the “Crayon Xiaoxin Case”, the Supreme People’s Court (2007) Min Sanjian Zi No. 14-1 Civil Ruling that “Shuangye Club’s prosecution not only claimed that Chengyi Company, the Sifu Company illegally used its copyrighted “Crayon Xiaoxin” art work in the trademark it registered or held. It also claims that Enjia Company illegally used its art works when selling and publicizing its products without permission. It is a civil rights dispute for the Shuangye Club to bring a lawsuit against the sale of the above products and the actual use of publicity. Subject to article 108 of the Civil Procedure Law, the people’s court shall accept the case.
In response, the first paragraph of article 1 of the provisions of the Supreme People’s Court on February 18, 2008 on Several Issues Concerning Cases of Civil Dispute over the Trial of Conflicts between Registered Trademarks and Enterprise Names and Prior Rights:“ the plaintiff brought a lawsuit for infringing upon his copyright, design patent, enterprise name, etc., by the words and figures used by others in the registration of a trademark. Subject to article 108 of the Civil Procedure Law, the people’s court shall accept the case.
In other words, in the period of trademark registration, the registered or held trademark should be based on the administrative relief procedure, and there is no infringement. Without permission in the product sales, promotion of illegal use of works, you can as a copyright infringement on the grounds.
On the second question, judicial practice is still taking the form of stopping infringement or revoking a trademark. For example, in the case of “Wu Song Fight Tiger”, Liu Jiyou created a painting of Wu Song Fight Tiger in 1954. In 1989 Jingyanggang Winery Company successfully registered trademark of the eleventh paintings.
In the Crayon Xiaoxin Case, the court also held that Shanghai Enjia Company, in exercising its trademark licensing right, did not exercise the exclusive control of the prior copyright owner without authorization, and still constituted copyright infringement, it hould bear the corresponding tort liability, so the Shanghai Enjia Company was ordered to stop the infringement and compensate for the loss.
However, the author believes that cessation of infringement is a serious way of assuming responsibility. If the claim of the obligee is an expression of originality, if damages can be used as a remedy, it will not be necessary to stop the tort liability. This was most evident in the case of “Wu Song Fight Tiger”. Jingyanggang Winery Company has been using the trademark for 16 years, and the cessation of infringement can not effectively maintain the balance of interests of all parties. However, in the Crayon Xiaoxin Case, the obligee claims that the essence is commercialized rights and interests, and the cessation of infringement becomes the result of his pursuit.
To sum up, to solve the conflict between trademark authorization and prior copyright, we should make clear the connotation of copyright right, whether to protect the original expression or the benefit of commercialization. From the perspective of copyright infringement, distinguish between ideas and expressions, rather than identifying sources. Define originality rather than distinctiveness; consider rational use rather than confusing judgment. In the trademark registration stage, the premise of administrative relief is appropriate. Commodity sale, propaganda stage, can adopt civil tort to deal with. For the purpose of protecting the original expression of the work, it is not advisable to take the responsibility to stop infringing or revoke the trademark.
 Yunnan Provincial Higher People's Court (2003) Yun Gao Min San Zhong Zi No. 16 Judgment.
 Beijing Higher People’s Court (2015) Gaohang (Zhi) Zhong Zi No. 1969 Administrative Judgment.
 Shanghai No. 1 Intermediate people’s Court Judgment.
 Beijing No.3 Intermediate People's Court (2014) Sanzhong Min Chu Zi No. 07916 Civil Judgment.
 Beijing Higher People’s Court (2015) Gaohang (Zhi) Zhong Zi No. 1969 Administrative Judgment.
 Shanghai No. 1 Intermediate people’s Court Judgment.
 Shanghai Higher People’s Court (2011) Shanghai Gao Min San (Zhi) Zhong Zi No. 74 Judgment.