Research On The Determination Of "original Scope Of Use" In Article 59, Paragraph 3 Of The Trademark Law

Up to now,the identification of "original scope of use" in paragraph3 of Article 59 of the trademark law is still a problem,and there are great differences.The expansion or reduction of the "original scope of use" will lead to the instability of trademark rights and the imbalance of the interests of the prior user of the trademark and the subject of trademark registration.Due to the unclear specific provisions on the "original scope of use" in the law,there are different terms,different elements and different application situations in the identification of the "original scope of use" in judicial practice.By clarifying the specific identification elements of the "original scope of use",this paper makes reasonable provisions on the original scope of use,so as to ensure that the rights of the first user and the later registrant are fairly protected.In the specific identification of the original scope of use,it is clear that the original scope of use is not the scope with certain influence,and its essence is the scope of use of the prior use behavior.Under the guidance of the principle of good faith and the principle of fairness and efficiency,make a comprehensive and comprehensive judgment on the subject scope,identification,use type,commodity or service category,regional scope,production and operation scale,etc.In terms of subject scope,it should include successor subjects,licensees and licensees who have been licensed or authorized before the date of registration application,common users,and exclude intermediate traders.The determination of the geographical scope shall be based on the business and sales system formed by the prior user before the application for trademark registration,and refer to the scope of "certain influence".The geographical scope radiated by the sales branches and agents under the business network formed by the operation and sales shall be regarded as the preliminary scope of the original scope of use.If the relevant public in the region knows the trademark,it shall be regarded as the original scope of use.Time honored trademarks,unregistered well-known trademarks and Internet cases have particularity when identifying the "original scope of use".Time honored brands shall fully consider historical factors.The regional scope in the recognition of unregistered well-known trademarks shall be nationwide.When determining the "original scope of use" under the Internet,its non regional characteristics shall be considered.To solve the problems related to the "original scope of use",the most important thing is to clarify the nature and connotation of the "original scope of use" in the judicial interpretation,and determine the six specific factors.In judicial practice,we should clarify the judgment steps and clarify the elements of reasoning.At the same time,it can also make the determination of the original scope of use more reasonable and flexible by establishing the right slack defense system and clarifying the effectiveness of the trademark coexistence agreement.