Research On The Identification Of "Certain Influence" In The Trademark Prior Use Right

It clearly stipulates the applicable conditions and corresponding restrictions of the right of prior use of trademark,which include "certain influence",in Article 59 Paragraph 3 of the Trademark Law of the People’s Republic of China(2013 Amendment).The "certain influence" is not a legal term,its meaning is ambiguous,the "certain" may cover a wide range.At the same time,the Trademark Law and the Anti-Unfair Competition Law have many expressions of "certain influence",but there is no supporting judicial interpretation and there is also no response to this in the Regulations on the Implementation of the Trademark Law and the Guide to the Trial and Examination of Trademark,which leads to confusion in the identification of the "certain influence" and the application of the trademark prior use right clause.Also,there are few literatures about Identification of the "certain influence" in the trademark prior use right clause,and there is no unified view.In view of this,this paper,based on the analysis of the existing domestic legislation and judicial cases,combined with the foreign trademark prior right of use provisions and the experience of trademark impact identification,this paper puts forward some concrete suggestions on the determination of the "certain influence",in order to help the prior right of trademark use provisions in China play its real role.The first part starts from the basic problems of the "certain influence",including its connotation and the comparison of related concepts.Then it introduces the three "certain influence" in the commercial mark law system in China,including the Article 6 of the AntiUnfair Competition Law,Article 32 and Article 59 paragraph 3 in the Trademark Law.Finally,it settles down to the "certain influence" in the trademark prior use right clause,analyses the applicable conditions of the right to use trademark preferentially,which aims to clarifies the important position of "certain influence" in the application of the rules of the of trademark prior use right.The second part is mainly about the theoretical analysis of the "certain influence" in the trademark prior use right.This part begins with the controversy on the "certain influence",puts forward some personal views on the rationality and necessity of the existence of the "certain influence".Then,from the perspective of the whole legal system of the protection of commercial marks,it analyzes the difference between the "certain influence" in Article 59 and those in Article 32 of the Trademark Law and Article 6 of the Anti-Unfair Competition Law,makes clear the different nature of different clause and the mutual relation of this three "certain influence".From both the legislative and judicial aspects,the third part makes an empirical analysis of the status quo of the "certain influence" in the trademark prior use right provision.Based on the analysis of the relevant legal provisions and most court decisions concerning the determination of "certain influence" in the terms of trademark prior use right,this chapter summarizes the problems existing in the application of "certain influence" in the trademark prior use right sufficient data,so as to discuss and solve them in the following parts.The fourth part is a comparative study of extraterritorial experience of the "certain influence" in the prior use right of trademark.Through the comparative analysis of the requirement of the trademark influence degree in the right of trademark prior use in foreign countries and regions,its identification standard and specific influencing factors,this paper summarizes the mature experience and the referential points.The fifth part is the suggestions to improve the identification of "certain influence" in the rules of trademark prior use right.In the light of the above-mentioned difficulties of its application,and in combination with the actual situation in China and the mature experience in foreign countries,this paper puts forward corresponding suggestions,which includes,(1)following the principle of interest balance and case identification;(2)clarifying the different meanings of“certain influence”in the different terms;(3)defining the recognition elements and their recognition standards,such as time,region,relevant public,awareness;and(4)for online trademarks,the identification of their influence needs to be combined with specific cases and use special elements needed considering,etc.