Research On Application Of "Original Scope Of Use" Of The Defense Of Prior Use Of Trademark

The definition of "original scope of use " of the defense of prior use of trademark affects the interests of the prior user and the trademark registrant.Injudicial practice,there are many problems in the definition of " original scope of use ",such as avoiding explanation,inconsistent defining elements and unclear judgment standard.In order to protect the interests of both parties," original scope of use "should be reasonably defined and its application should be further discussed.The defense of prior use of trademark and the defense of prior use of patent can not be compared,the definition of " original scope of use" of the defense of prior use of trademark should not refer to the patent related stipulation,it should take the goodwill coverage scope as the judgment principle,the trademark application date as the definition time node,then analyzes concrete factors such as the subject,the object,region and the methods of use to define " original scope of use ".As for the scale of use,it is not necessary to limit the scale by reference to the relevant provisions of patent law,but it can only be expanded within the region covered by the original goodwill.There are three situations for the application of "original scope of use":general application,exceptive application and reverse application.The "Screening Test " is generally used to deal with the dynamic use of trademark,while the addition to their products proper marks to avoid misleading public can replace the application of "original scope of use " at the result constraint level,and solve the problems from the fundamental level.When it comes to malicious registration of a trademark,the defense of prior use of trademark is not limited by"original scope of use",which called exception of application to the "original scope of use".However,the determination of "maliciousness" should not be inferred by "known or should know",but the registrant’s intention to embezzle others’ goodwill should be further demonstrated through objective actions.As far as reverse application is concerned,the negative defense effect does not prevent it from protecting its rights through the Anti-Unfair Competition Law,which bans the trademark registrant from using the trademark in prior user’s original scope.The prior user may invoke Article 6(1)of the Anti-Unfair Competition Law to protect the goodwill acquired by his prior use.