Research On The System Of Prior Use Of Trademarks

The 2013 revision of the “Trademark Law” added the provisions of Article 59,paragraph3,clarifying that prior users have the right to continue to use the original trademark,further improving the trademark prior use system,and strengthening prior users of unregistered trademarks To a certain extent,it resolves the dispute over the protection of prior use of unregistered trademarks in judicial judgments.In essence,it is a balance of interests between the registrant and the user,and protects the accumulation of previous users.The credit and benefits of the company broke the inherent shortcomings of the registration system.As the academic circles have different opinions on the theoretical basis of the legality of the prior use of trademarks,there are still disputes over the nature of the prior use of trademarks.Is the prior use purely a right of defense or the right to enjoy active power? And the understanding of the relationship between the legal norms of the trademark prior use system is vague,how to coordinate the relationship between Article 59,Paragraph 3 and Article 32 of my country’s“Trademark Law” and Article 6 Item 1 of the Anti-Unfair Competition Law To achieve the protection purpose of the prior use system? In addition,how should its constituent elements be determined? The applicable conditions stipulated by specific laws are also too abstract,which brings difficulties to judicial judgments.For example,the judgment standard of “prior use”,“has a certain impact” and “original use scope”,how to play the guiding role of legislation to solve the problems in these judicial decisions is the core.The thesis uses empirical and historical analysis methods,combined with corresponding theories,to put forward targeted suggestions for solving the problems in the judicial system.This article is divided into four parts:The first part describes the legislative background and historical evolution of the trademark prior use system.,and takes the emergence and development of my country’s service trademark prior use system as the starting point to clarify the development history of the prior use system and understand the norms of the prior use system The intention is conducive to the establishment and improvement of a specific trademark prior use system to realize the standard intent of the prior use system and ease the conflict of interest between the prior user and the registered trademark owner.The second part analyzes the nature of the prior use of trademarks,and considers that it belongs to the property right with active power rather than the simple right of defense,and then through the theoretical basis of the prior use right,namely the debate on registration and confirmation,Locke’s “Labor Obtaining Property” “Theories” and “quasi-possession” theory demonstrate the status of trademark property rights of prior use rights.The third part explains the constituent elements of the prior use right of a trademark from the aspects of subject,subjective,objective,and object.The first is that the trademark has been licensed before the registered trademark is registered,and the prior trademark licensee and those at the intermediate transaction level Can dealers,etc.invoke the prior-use defense system;subjectively explain from the legal principle and demonstrate that the prior user should have goodwill subjectively according to the method of system interpretation;the object aspect mainly analyzes whether the registered trademark constitutes the prior-use trademark,which is established in First use right.The legality of the goods or services used in the prior use of the trademark,how to coordinate the identification of the “influence”requirements of the prior use of the trademark,etc.;the applicable object is based on the trademark use conditions satisfied by the prior use of the trademark,and Whether “trademarks that have a certain impact on overseas use” enjoys the defense and prohibition powers of the prior use right,whether the “passive use” behavior of the prior use of the trademark belongs to the time judgment point of the prior use of the trademark and the prior use of the trademark,whether It is required to carry out analysis in accordance with the “double-before” condition,point out the problems existing in the current law and put forward specific suggestions for improvement.The fourth part is the legal advice on the improvement and optimization of the trademark prior use system.Through the analysis of the characteristics of commodity trademarks and service trademarks,combined with the borderless nature of the Internet and the normative intent of the prior use system,the “Original scope of use”,based on the protection of the legitimate interests of the holder of the prior right of use and avoiding other people’s“free-riding” from causing public confusion,it is recommended to add the provisions of the Anti-Unfair Competition Law to the Trademark Law,and the basis is The right attribute of the first-use right adds relevant regulations on the transfer of prior-use trademarks,and the prior trademarks must be transferred together with the business.