Reflection And Reconstruction Of Prior Use Unregistered Trademark In China

Trademarks are marks that distinguish the source of goods.The use and registration of trademarks are two ways,so trademarks are divided into registered and unregistered trademarks.Since China's first "Trademark Law" was enacted in 1982,it has been adopting a trademark registration system.Therefore,in practice,unregistered and registered trademarks are confusing and conflicts and conflicts are inevitable.The current trademark law does not incorporate unregistered trademarks into the scope of protection of trademark exclusive rights.There is a conflict of interests between unregistered trademark owners and trademark holders,and the criteria for identifying specific conditions are rather vague.In the context of this,it often leads to the inconsistency of judicial decisions,and the goodwill of a trademark's predecessor is difficult to be effectively protected by the law.Therefore,it is imperative to protect the unregistered trademark before it is used.The body of the article is divided into five chapters.The first chapter is to define the right to use the unregistered trademark first,and at the same time,to expound its constituent elements.The basic connotation of unregistered trademark prior use rights includes three aspects,namely,the right to continue to use within the original scope of use,to prohibit others from improper use,to prohibit others from improper registration,and to use conditions,conditions of influence,and scope conditions.Etc.Explain their applicable conditions.The second chapter,combined with some typical cases in judicial practice,examines and reflects on the current status of the protection of the unlicensed trademark prior use in China.The main reason is that the standards are not clear enough,such as “certain impact” and “original scope of use”,and The problems associated with the lack of protection of unregistered prior use rights.The third chapter on the protection of unregistered trademarks outside the domain uses the relevant laws of the UK and the United States in the Anglo-American law system and the relevant laws in Germany and Japan in the civil law system,and summarizes the determination of the subjective status of the prior use rights holder in the above law.The scope of certain influence and the construction of trademark coexistence system will inspire our country.The fourth chapter elaborates the legal basis for the protection of unregistered trademarks prior rights,and discusses them from the value of trademarks,the theory of goodwill,the principle of fair competition in the market,and the principle of good faith between commercial entities,and elaborates the need to protect unregistered trademarks prioruse rights.The fifth chapter intends to propose the reconstruction of the protection of the unlicensed trademark's first-use rights in China,clarifying the certain criteria of “certain influence” and improving the definition of the “original use scope”.