Research On Conflict Of Registered Trademark And Prior Rights

With the development of the times and scientific technology, intellectual property protection becomes more and more important. The trademark, one of the indispensable elements as the commercial activities, has been the focus of the intellectual property rights protection, and the conflict of the registered trademarks and the prior rights is also growing in the increasingly developed business activities. Chinese trademark law clearly stipulates that prior rights should be protected. Therefore, what is the prior right? What is the conflict of Prior rights and the registered trademarks? What is the protection about the prior right in the legal system of our country, whether the protection can be improved? The research of these issues and questions, is also the what the paper attempts to answer. With the discussion of these issues, the understanding of the prior rights is also gradually developing, and the research on the conflict about the registered trademarks and prior rights has gradually developed into how to guard the legitimate right from the owner of the prior rights against the registered trademarks.There are four chapters in this paper. We research the conflict of trademark and prior rights, on the basis of legal system of our country, by learning from the legislative experience of the western developed countries and analysis of recent cases.Chapter 1, by analysis the law of developed countries, such as Germany, France, USA, summed up the basic scope of the prior rights, starts with the research of registered trademarks and foregone researches on the conflict of rights and discusses the concept and scope of the prior rights in our trademark law.Chapter 2 analyses some typical conflicts of the registered trademark and prior right, such as the conflict about registered trademark and copyright, the conflict about register trademark and The name of the enterprise, the conflict between registered trademark and the name, the conflict of the registered trademark and domain name, the conflict between the registered trademark and the packaging and decoration from well-known goods. This chapter, which is of importance in this paper, through the analysis of many domestic cases, points out that the conflict about registered trademarks and prior rights, and also makes my own suggestions of some problems in the conflict. At the end of this chapter, the characteristics of the prior right are summarized.Chapter 3 explains the reasons for conflicts existed between the prior right and the registered trademark referred in the second chapter. Those include the subjective, normative and regulatory reasons. The subjective reasons are caused by the nature of pursuing profit and the awakening of consciousness in the intellectual property rights. The normative reasons reflect in the following aspects: the uncertainty extent of the prior right, the concurrence of laws and the inherent characteristics of the intellectual property rights as the intangible asset. The concurrence of laws cause that the same objects may have different rights regulated in the different legal systems, which result in the conflict existed between the prior right and the registered trademark. With the characteristic of being easy to spread and copy of the intellectual property right as the intangible asset, it is sample when happens infringement of the intellectual property rights. The regulatory reasons include the following aspects: the diverted administrative examine over the prior right, the method for applying the registered trademark and the conflict between the administrative affirmation of the registered right and the judicial adjudication of infringement. The diverted administrative examine over the prior right adds the possibility of happening conflict between the registered trademark and the prior right; the method for applying the registered trademark separates the nature relationship among trademark, goods and serve, which is one of the causes led to rights conflict; the conflict between the administrative affirmation of the registered right and the judicial adjudication of infringement explains that when the party enjoying the prior right brings a infringement sue of the registered trademark, the date has passed the five years protection period regulated by the Trademark Law.Chapter 4 is the summery of the whole paper. We propose solutions to the conflict of the registered trade mark and the prior rights. By clarifying the scope of the prior rights, establishing the system of trademark registration which is founded of practical using, putting the principle of honesty and credit in first thinking, prohibiting from malicious registration completely, and reinforcing the contact between the various department of the government, the development of Chinese intellectual property will become more prosperous.