The Research Of Legal Application Of Trademark Priority Right In China

The formulation of national trademark priority right regulation has properly solved the prolonged problem that unregistered trademarks can not be supported and protected by law,which signifies a more mature and complete step has been made in current trademark right system.However the first regulation of national trademark priority right system reveals its inadequacy and obscurity,which causes problem in application process and inconformity in related judicial judgement.Before the amendment of Trademark Act,theoretical and practical discussions of trademark priority right mainly focus on the rationality and necessity of the establishment of trademark priority right,and the amendment of Trademark Act absorbs the regulation of trademark priority right,which makes a positive response to the protection of trademark priority.Therefore this paper will not make excessive discussion on the existence matter of trademark priority regulation and will focus directly on the application of trademark priority right based on the general summary of trademark priority right.This paper starts from the problems resulted from the boundary conditions of priority right and continued use right in current judicial practices,clears up existing disputes,makes reponse to them,and what is more,this article plans to find an efficient way to solve those problems based on the survey of related applications in extraterritorial field and hopes to have a positive impact on the settlement of trademark priority right application.This paper is divided into four parts.The first part is a brief discussion of the basic concept of trademark priority right regulation.By the analysis of trademark priority right provisions and the protective provisions of unregistered trademarks,the issues about the property,the feature,and the requirement of establishment of trademark priority right are cleared up.The second part makes an empirical analysis of current application of trademark priority right and affirms its positive influence,but on the other hand,the existing problems of its application are recognized,such as the identification of trademark priority right,the restriction on former application range,the transfer of trademark priority right from the holder to a third person,and the additional identification of registered trademark.The third part analyzes accordingly constitutive requirements and limiting factors of trademark priority right based on the aforementioned application problems in trademark priority right,summarizes main dispute points,makes an analysis of related regulations in domestic and foreign field,and gives personal views on current controversy.With the purpose of compensating current shortcomings of national trademark priority right and by summarizing the perspectives of scholars and learning from related legislative experiences in domestic and foreign field,this paper upholds that the perfection of legal provisions and the case analysis of judicial practices are essential for the settlement of related application problems.