The Study Of Prior Use Trademark Right

The present of trademark registration system cannot resolve the interest problem of unregistered trademark protection.Therefore,China has established a trademark prior use right system to balance trademark interest disputes.The article first introduced the legislative process of the prior use right of trademark,discussed the nature and significance of the defense right of the prior use right of trademark.Analyzed the conditions and restrictions for the establishment of prior use rights.The paper discusses the problems existing in the prior use right of trademark from four aspects and gives corresponding improvement measures.First,the subject of the prior use right of trademark includes not only the prior trademark user,but also the business successor and the intermediary of the distribution channel.Trademarks cannot be licensed prior to use,but they can be transferred together with business operations.Second,a certain influence of an earlier trademark should be comprehensively considered in consideration of multiple conditions such as comprehensive geographic area and consumer acceptance.In litigation,it is necessary to provide evidence of a complete transaction process to prove the influence of the use of a trademark.Third,the author believes that the geographical scope of the original scope should be calculated from the date the prior user knew or should have known that the trademark had been registered.Under normal circumstances,the date of announcement of trademark registration can be regarded as the time at which the prior user knew or should have known.If the trademark registrant wants to calculate the original scope used in advance,it needs to provide evidence to prove that the prior user knew that he had used another person's trademark to apply for registration before the date of the trademark registration announcement.The original scope should also be limited to the same or similar categories,but it should not be the operating scale of the prior user.Fourth,The Trademark Law considers that the addition of marks is an obligation of the prior users,and the unfair competition laws have the contrary provisions on the circumstances in which the registrant enters the original scope of the prior users.How the two different provisions should be resolved.The addition of additional identifiers is to avoid consumer confusion and virtually increase the ability of consumers to identify sources of goods,ultimately achieving the purpose of protecting the interests of prior users.