Research On Related Issues Of Protection And Limitation Of Prior Rights In Trademark Law

Accompanied with fierce market competition,there is a sharp increase in legal disputes,especially in the field of intellectual property.The great value of the trademark has prompted many people to break through the bottom line of morality and law again and again under the drive of high profits and returns,and infringed upon the legal rights and interests of others.A series of infringements such as the"Sanmao Case","Tuyoyo Case","Tongdefu Case" and even the "Li Wenliang"trademark squatting during the current epidemic of new crown pneumonia are worrying.The protection and limitation of prior rights reflected in these cases are the focus of this article.The protection of rights is never absolute.The restriction under the conditions has its inevitability and rationality.It is the purpose of this article to find the balance between protection and restriction and to achieve individual case justice.Strengthening the research on the relevant provisions and applicable rules of prior rights in the trademark law will help maintain market order,promote the balance of interests,and achieve fairness and justice.Before 2017,there were few provisions on prior rights in the field of trademark law in China,and the provisions on the meaning,definition and scope of prior rights in the current trademark law were vague and general.However,the "Provisions on Several Issues Concerning the Trial of Administrative Cases for Trademark Authorization and Confirmation"(hereinafter referred to the "Provisions")implemented by the Supreme Court in March 2017 defines the concept and scope of prior rights and has a great significance for the prior rights system.However,there are still certain deficiencies in this provision.For example,firstly,a simple list cannot cover complex and diverse disputes,and there is a lack of categorization.Besides,there is no necessary principled guidance on how to deal with prior disputes in practice.Priority is not absolute protection.In specific cases,certain restrictions should be imposed according to different cases,for instance,supplemented by the principle of balance of interests.Therefore,the research on the protection and limitation of prior rights is significant to the legislation and judicial practice of prior rights in the trademark law,not only discovering the problems in the current legislation and judicial practice,but also filling the gap in legal regulations and theoretical researches.It can also provide solutions to the actual conflict,improving the effectiveness of judicial application and enhancing operability.This article is divided into the following five chapters:Chapter 1:Starting with the "San Mao case","Tuyoyo case" and "Tongdefu case",the protection and limitation of prior rights are viewed from the perspective of different conflicts of rights.Based on a brief introduction of cases,analyze the application of the system in handling different types of conflicts between prior rights and trademark rights in practice,leads to the discussion of related issues on the protection and limitation of prior rights in this article.Provide directions for the following analysis of defects and shortcomings.Chapter 2:Study the basic theory of prior rights protection in Chinese trademark law,starting from Article 32 of the Trademark Law.Through the research on the legislative purpose and theoretical basis of prior rights protection,combined with the analysis of the 30 judicial decisions,we want to understand the nature of the system,the original intention and basis of the legislation,and then provide ideas for the follow-up improvement suggestions.Chapter 3:Explore the basic theory of the limitation of prior rights in Chinese trademark law.Understand the original intention of the limitation provisions through analyzing the reason and purpose of the limitation of prior rights.Then compare the specific provisions of the legislation to deepen the understanding of the limitation of prior rights.Chapter 4:Through the research in the first three chapters,the judicial practice is combined with the institutional basis and theoretical basis to discover possible defects in the system design.Combined with the extra-territorial legislative provisions to resolve such conflicts of rights,we are inspired to improve our legislative system and judicial practice,and provide theoretical support for the improvement opinions in Chapter 5.Chapter 5:On the basis of the analysis and demonstration of the deficiencies in the relevant provisions of protection and restrictions in the previous chapters,proposing specific suggestions for improvement.On the one hand,at the level of system design,it is necessary to improve the prior rights protection system and modify the restrictions.The former mainly makes the object and method of protection more reasonable through four aspects:making a distinction between types of protection,clearly writing protection methods into legislation,establishing a system of "agreement to register" and "coexistence of rights",and accelerating the establishment and improvement of a protection mechanism for commercialization rights;the latter focuses on the starting point of the limitation period,the relief after the limitation period and the modification of the exclusion clause.Plus,formulating a unified intellectual property code is also one of the possible paths.On the other hand,at the level of judicial practice,combined with the analysis of the application of the thirty judicial judgments,demonstrate the application of the four principles:protection of prior rights,balance of interests,fair benefits and honesty and credibility finding prior rights protection model fitting Chinese national conditions.We hope to balance the interests of all rights holders with the increasingly fierce market competition,better resolve disputes,achieve a win-win situation,and contribute to the protection of intellectual property rights and the harmonious and stable development of the market economy.