Research On The Judicial Application Of The Priority Right Of Trademark

Since the implementation of trademark law,China has adopted the trademark registration system.Trademark use is the way for trademark to realize its essential function of identifying commodity source.For unregistered trademarks that have been affected by trademark use in commercial activities and have the function of identifying sources,they should also be protected by trademark law.In 2014,the third amendment of the Trademark Law added a clause on the priority right of trademarks.The legislative purpose of the system of priority rights of trademarks should be to make up for its defects without impact on the system of obtaining registration,and to give appropriate legal protection to priority unregistered trademarks within a limited scope.However,the theoretical and practical circles do not agree with the understanding of the constituent elements and restrictive elements of the trademark preemptive right,and there is no relevant judicial interpretation to clarify the applicable rules of the clause.Based on this,from the practical background and purpose of the establishment of the trademark preemptive right system,the content of the trademark preemptive right system stipulated in paragraph 3 of Article 59 of the Trademark Law is interpreted.And combing all the cases since the trademark first use right system entered the law,through the empirical research method to carry on the whole sample case analysis.Through analysis,it is concluded that the constituent elements of trademark priority right defense mainly include time element,subjective element and " influence element ".After the establishment of trademark priority right defense,the "original scope of use" is applied as the limiting element.Among them," prior time node" should be satisfied before the date of trademark application;subjective element should satisfy subjective goodwill;" certain influence " should also satisfy time node before trademark application date,At the same time,other objective identification elements " geographical scope " and " relevant public awareness " should be added to assist in judging whether there is " certain influence ".By clarifying the constitutive and restrictive elements of the right to appeal the trademark first use,it provides a clear reference for the court to apply the trademark first use right in the case,avoids the wide scope of discretion,and maintains the fairness and justice of the law.Balance the rights and interests of trademark owners and prior users and protect consumers’ reasonable trust interests.