On The Protection Of Prior Rights In Trademark Law

Article 9 and Article 32 of Trademark Law stipulate that trademark registration shall not damage the prior rights of others.This is only a vague and general rule of prior rights.The concept,scope,type,and application conditions of prior rights lack clear and uniform provisions,which leads to the failure to reach agreement on the interpretation and application of prior rights in judicial practice,and different judgments in the same case occur from time to time.Although the Trademark Law established the principle of protecting prior rights,the protection of prior rights is not absolute,and can only be protected if certain conditions are met.At the same time,the protection limits of prior rights are discussed,in order to promote the balance of interests and achieve fairness and justice.This article mainly analyzes the appropriate protection of prior rights in the Trademark Law.First,start with the basic theory of prior rights protection,sort out the understanding of prior rights and the protective effect of prior rights,clarify that the prior rights in the Trademark Law should be ‘rights’ or ‘rights and interests’ which are clearly stipulated by the law that others enjoy before the filing date of the registered trademark.The expanded interpretation of prior interests will not only lead to excessive scope,but also cause the abuse of discretionary power.Secondly,the prior rights protection conditions of the Trademark Law must meet the two conditions of ‘belonging to the scope of prior rights’ and ‘prior rights being damaged’.The prior rights clearly stipulated by the law are merged based on the same types of rights,mark rights,including prior trademark rights,trade name rights;other intellectual property including copyrights,design patent rights and other civil rights including name rights and portrait rights.And on this basis,combined with legal provisions and specific case judgments,it analyzes the determination of damage to the three types of prior rights.Third,discuss the limits of prior rights protection.In order to balance the interests of prior rights holders and registered trademark holders,prior rights holders need to claim rights within a certain period of time.If they fail to exercise their rights within the time limit,the registered trademark will pass the actual use and gain a certain reputation,then from the perspective of realizing the maximization of benefits and considering the public interest,certain restrictions on prior rights should be imposed.Finally,it puts forward suggestions to improve the appropriate protection of prior rights in the Trademark Law.On the one hand,it sorts out the principle of appropriate protection of prior rights;on the other hand,it makes perfect and specific suggestions.Clearly enumerate the scope and classification of prior rights,and at the same time clarify the criteria for judging each category of prior rights,so as to distinguish prior rights as types.Improve the provisions on the limitation of prior rights,modify the starting point of the time limit and the exclusion clauses,and follow the principle of the invalidation of rights : the prior rights holder will be deemed to have acquiesced to the trademark after knowing or ought to know that the right has been infringed and tolerating the infringement for 5 years use by registrants.