The Research On The Legal Protection Of The Prior Use Right Of Trademark

At present, in the different countries’ trademark law, the prior use right of the trademark is divided into two patterns which are the use of trademarks and the registration of trademarks. Countries that take the use pattern get the trademark right through the way of practical use of the trademark owner rather than registration. Countries that take registration pattern get trademark right only through the way of registration. In our country, there is a sole system about the trademark obtaining which has the voluntary principle, therefore, economic activities in our country include a great number of enregistered trademarks. In the old Trademark Law, only the famous trademark can be protected. In the59th of the new revision of the Trademark law, the system of the prior use right of the trademark is explicitly stipulated, that makes it possible to continue to use enregistered trademark fist.Before revising the Trademark Law, the discussion of theoretical realm and practical realm focuses on rationality and necessity of building the prior use right of the trademark. After revising, our countries’s the prior use rights of the trademark has been built, so the focus is not about whether need to build the prior use right of the trademark but about how to put it into the judicial practice. In our country, cases involving in the prior use right of the trademark in judicial practice are not too many. Before this time, related cases basically judged the prior right of the trademark encroaching upon the right of registered trademarks. With the development of social economy, cases involving in the prior use right of the trademark become more and more. How to recognize the prior use right of the trademark and take measures to protect it are the biggest problem s faced by law-workers.This article makes a further analysis of the prior use right of the trademark that the former used trademarks are worthing being affirmed on value, stable economic activities and the theorem of fair and just. But in our country, the new Trademark Law only affirms the existence of the prior use right of the trademark, from the angle of legislation,which has many fuzzy problems. To be more accurate, it has only stipulated the prior use right of the trademark from legislation plane, but from judicial plane,it is feasible. If a legal rule cannot be used well, it will be ignored. Therefore, this article will not explain too much about the rationality of the prior use right of the trademark,but basing on the rational existence of the prior use right of the trademark,we will discuss the nature of the prior use right of the trademark first then further discuss the suitability of it. After that,in the foundation of the prior use right of the trademark stipulated first, we will make a further analysis of some concepts affirmed from legal theorem economics and semiotics. Theoretical discussions are as important as practical use. This article will make the focus on how to use the prior use right of the trademark well in judicial practice.This article mainly used comparison and analysis method, history analysis method, law explanation method, law and economics analysis method and semiotics method to write. It is totally concluded in three parts that are introduction, main text and conclusion. The main text can be divided into seven parts.The first part mainly talks about the concept and the rationality of the prior use right of the trademark. This is the basic part of the hole article and in this part there is a elaboration of the prior use right of the trademark of different countries.The second part elaborates the nature of the prior use right of the trademark. The nature of the right is the foundation of the existence of the right, and also is the important text of it.The third and the fourth parts mainly elaborate conditions of the establishment of the prior use right of the trademark and restrictions of it. The prior use right of the trademark is not suitable for all the enregistered trademarks. Law has established conditions and restrictions of he prior use right of the trademark.The fifth and the sixth are the main parts. In our country, the system of the prior use right of the trademark is confirmed in the newest Trademark Law, but there are many imperfect places which mainly concentrate on limits of the original scope and the increase of suitable distinguishing symbols. All these cause the infeasibility of the prior use right of the trademark, much disputation in theoretical realm and un-control in the judicial practice. The writer puts forward some suggestions from law and economics and semiotics angles based on stipulations of different countries.Last part includes writer’s suggestions for the prior use right of the trademark.