| The Trademark Law revised in August 2013 has added Paragraph 3 of Article 59,which stipulates the trademark prior use right defense at the legislative level for the first time.The establishment of the rule balances the interests between the holders of trademark exclusive rights and the holders of trademark prior use rights.However,Paragraph 3 of Article 59 of the Trademark Law is abstract and vague in terms of applicable elements.Therefore,how to understand and apply the rule is worth in-depth study and discussion.Through the empirical study of the latest judicial cases in recent years,it is found that some controversial issues in academic circles have reached a consensus in judicial practice.By summing up these consensuses and the legal issues that remain controversial,combined with the foreign legislation,this paper analyzes the object,the objective elements and the subjective elements of the application of trademark prior use right,and finally comes to the improvements on the application of the rule in the future.Regarding the component of determining “prior”,this study summarizes the different opinions in academic and judicial practice,and analyzes whether to apply the "double prior" criteria or not.When it comes to the component of“certain influence”,the author concludes that the current judicial practice has agreed that the standard of determining “certain influence” should not be too by conducting the empirical study.With regard to the limitation of "original scope of use",it is proposed that the legal application of "original scope of use" should be constrained and interpreted in a diversified way.Finally,this paper analyzes the subjective elements of the application of trademark prior use right defense,and suggests that a trademark prior user should be subject to the subjective requirement.Therefore,it is supposed to be added to Paragraph 3 of Article 59 of the Trademark Law to make up the deficiency of current legislation in the next round of revision of the Trademark Law. |
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