Theory Reflection And System Amendment On Prior Use Right Of Trademark From The Perspective Of Fair Competition

With the development of China’s economy and trademark legal system,China’s "Trademark Law" has revealed many problems in its implementation.Therefore,the fourth revision work has begun,and it is necessary to reflect on the problems in the current trademark law.The right of prior use trademarks is a nuance in the legal system of trademarks,under the trademark registration system,some managers use a trademark without register.When the trademarks have a certain goodwill,then other managers apply trademark registration for the same or similar trademarks on the same or similar goods or service categories.Then there appears a conflict of interest between the prior use trademark and the posterior registered trademark.According to the requirements of the registration trademark law,two same or similar trademarks cannot coexist on the same or similar goods or service categories in order to avoid the situation of consumer confusion.From the basis of production and value,the existence of prior use trademarks has its rationality and legitimacy.The trademark originates from the use of the trademark,and the trademark is also obtained from the use.This is in line with the law of trademark development.However,according to the registration system,trademarks are authorized and protected through registration,which seems to be inconsistent with the development of trademark rights.In this regard,it is necessary to reflect on and analyze the issues related to the prior use trademarks’ right,so as to achieve the amendment of the system.The prior user of trademark has obtained limited legal recognition and protection under the strict trademark registration system.Compared with the registered trademark owner,the prior user acquires limited legal recognition and protection.The scope of trademark protection of the prior user is narrow,and the exercise of rights is more restricted.The prior user of trademark and the registered owner of trademark are both managers in the same market who use trademark to carry out competition.From the perspective of fair competition,the two users should get balanced competition conditions and competitive interests because trademarks and fair competition are inseparable.The prior user of trademark and trademark registrant and consumer are subjects of the legal relation of prior use of trademark as well as the competition.Therefore,this article is trying to find the unbalance in benefit distribution among them from theperspective of the prior user of trademark and trademark registrant and consumer.At the same time,with a large number of specific cases we can analysis the value concept and the relationship between fair competition and trademark and the influence on benefit distribution.Finally,establish a corresponding relationship with the current situation and problems,then propose solutions.Solutions include that delimitation of the scope of rights of trademark prior users and setting conditions of protection for trademark prior users.Besides,the protection of consumer is also should be concerned.In this way,the integrity and correspondence of the structure in whole paper could be implemented.A trademark consists of elements such as text,graphics,numbers,colors,sounds,and three-dimensional logos which are taken from the common domain of society.A trademark acquires legal significance only if the symbol establishes relationship with a particular good or service.The establishment of the reference between trademark and products requires actual use of the trademark.The distinguishing source of the trademark can be realized by using trademark.Consumers make purchase choices and evaluations after they have recognized different trademarks.Goodwill is gradually formed through consumer’s positive evaluation on trademarks.This is why trademarks are protected by law.Goodwill includes both the integrity management of the operator,the recognition and trust of the consumer,and the interest relationship established around the trademark.Trademark rights are derived from use,The prior use of the trademark can enjoy the relevant rights according to the use behavior,Therefore,research on the use of trademarks is crucial.At the same time,the trademark is protected because of its goodwill and related information,These objects are not automatically generated with registration,but because of the objective facts formed by the honest operation of the operators in the market competition,This shows that the registration process is not the basis for trademark protection.Trademark registration and trademark use are two ways to obtain trademark rights in the world which caused the issue of trademark prior use.Historically,in the early days of the development of trademark law,the trademark use produced rights was a natural pattern.However,it has defects in confirming rights.The registration system with efficiency and security advantages has gradually become the mainstream acquisition mode.Strict registration system neglects the use value of trademarks,and brings a lot of unused trademarks,resulting the waste of trademark resources andaggrandizing of the competition threshold for others to enter the trademark market.At the same time,there may lead to the hoarding of registered trademarks and filing malicious trademark infringement lawsuits to seek high compensation or transfer fees.The goodwill of a trademark gains by using.The trademark prior user should enjoy the benefit of using trademarks beyond the lack of procedures.The prior use of the trademark is only an ordinary unregistered trademark without registered trademark.How to protect it is an issue to be solved by the unregistered trademark protection system.Therefore,it is necessary to reflect on the strict trademark registration system in China.The main purpose of the article is to reflect and reform the system of obtaining trademark rights in China.In the perspective of fair competition,trademark prior user and trademark registrant have a direct competitive relationship because they use the same or similar trademark on same or similar products.Fairness is one of the value pursuits of law,and fair competition order is also one of the value objectives of trademark law.In order to ensure the stability of the trademark which is s social differentiation system,the interests should be fairly distributed between the prior user and the registrant from the perspective of fair competition.The enhancement of the protection of registered trademark right under the Trademark Law will squeeze the interests of other competitors and consumers.It is justifiable for prior use of trademark to obtain benefits based on using trademark,but the trademark Law imposes restrictions which are not reasonable on the full use of trademarks like certain influence and using in original range and addition of proper identification.This kind of inequality is manifested in many aspects,which is discussed in detail in the third chapter.The prior user and the registrant are managers in the trademark market and they use limited trademark resources to compete,so it is obliged for them to maintain a fair competition order in the market.Consumers are directly affected by competitive relationships,and their interests are also affected by trademark use.The coexistence of two same or similar trademarks can lead to consumer confusion,leading to an increase in the cost of search costs for their purchases.Consumers are also involved in the construction of trademark value,and consumer recognition is the key to the formation of goodwill and the relationship between trademark and commodity.Therefore,when dividing the competitive interests in the prior use right of trademark,it is necessary to consider thebalance among the above three parties.The chapter arrangement of this paper is also based on the above three parties,focusing on the distribution of interests among the three parties,and at the same time,it integrates the theory of the prior use right of trademark,and finally returns to the solutions.The basic method is to reflect whether the current system in China conforms to the content of competition from the perspective of fair competition.Besides,the goal of equitable allocation of the interests between prior users and registered trademark users has not been achieved.The law needs to ensure the fairness because trademarks are part of the social differentiation system and the value attribution system.Even though the prior use right of trademark is small part in the trademark legal system,we can observe the whole picture of China’s trademark legal system by the prior use right of trademark.In the process of solving interest conflict between the two trademark users,we should find the solutions.We should aware that it is necessary not only to reflect on the concept that incorporate trademark use and fair competition,but also to examine the specific system,so as to realize the comprehensive protection of the prior use right of trademarks.In the background of the fourth revision of the Trademark Law,it is necessary to improve the trademark registration system and rationalize the logical conflicts.The article will analyze in detail how to balance the interests of the three subjects.