| The protection of prior rights has always been the focus and difficulty in the field of trademark law.It not only involves the acquisition and maintenance of trademark rights and the defense of prior rights,but also the specific procedures and legal application of trademark administrative authorization and determination.At the same time,it must be coordinated with the copyright law and patent law and other intellectual property laws,but also closely related to the civil code and the anti-unfair competition law.For this reason,since the 2001 Trademark Law clearly stipulated that the trademarks applied for registration “may not conflict with the legitimate rights obtained by others earlier.” Trademark administrative regulations,related judicial interpretations,and typical cases have also formed many specific rules for protecting prior rights in trademark administration,civil infringement and unfair competition relief.The theoretical community also attaches great importance to this issue,and conducted indepth analysis from the definitions,characteristics,types,and protection methods and approaches of the above-mentioned legal norms lacking or existing problems.However,an increasingly unified and complete rights protection system has failed to reach consensus on the above-mentioned important aspects of prior rights protection:Deficiency in definitions,unclear characteristics,inconsistent classification of types,conflicts in protection approaches,and the existence of over-protection of prior rights,which seem to not affect practice,but there are problems of theoretical and institutional corruption.Therefore,the systematic study and improvement of prior rights protection in trademark law with the identification of the substance of damage as the starting point not only has theoretical value,but also has practical significance in legislative,administrative and judicial practice.In addition to the Introduction and Conclusion,the main body of this dissertation includes five chapters.Chapter I “Analysis of the Status Quo and Problems of Prior Rights Protection in Trademark Law” is mainly divided into four aspects: First,it analyzes the problems existing in the basic concepts such as the definition and type of prior rights in trademark law.Analyze the existing legislative aspects of the definition,types,and damage determination standards of the prior rights in the Trademark Law,and the absence and application dilemmas of the commercial confusion clause in the Anti-Unfair Competition Law,and then review the positive significance and existing problems of the supplementary and detailed content of the administrative and judicia of the abovementioned content at the practical level.Second,it analyzes the problems existing in the prior rights damage relief rules.It is found that the meaning of damage in the legislation and practice rules is blank,and the damage identification standards are complex and diverse and difficult to unify.Although the trademark law provides a basis for claims for damages to prior rights,it has little effect in practice.Third,analyze the systemic dilemma of the above-mentioned trademark administration,infringement relief and contract protection.The administrative and judicial practice rules have continuously expanded the scope of prior rights recognition,and at the same time,there are situations of excessive protection of prior rights and restriction of later trademark rights in which prior rights directly deny equality and later registered trademark rights and the use of judicial protection to exclude trademark administrative protection.Fourth,analyze the problem of excessive protection of prior rights.Administrative and judicial practice rules have continuously expanded the scope of prior rights recognition.At the same time,there are over-protection of prior rights and restrictions on prior rights such as direct negation of equality and later registered trademark right through prior rights,and the rejection of administrative protection of trademarks through judicial protection.The situation of post-trademark rights.Chapter II “Analysis of the Basic Theory of Prior Rights Protection in Trademark Law” mainly discusses three aspects: First,analyze the basis of prior rights protection.On the basis of preliminary analysis of the definition,characteristics and types of prior rights through domestic and foreign legal texts,analyzed and determined the reason that prior rights suffered damage,such as the trend of expansion of private rights,the intangibility of intellectual property rights,and the limitation of trademark registration marks and other,while clearly protecting the legitimacy and necessity of prior rights.Second,determine the essence of the damage to the prior rights.The existing substantive theory of damage of object overlap is only the appearance rather than the substance in intellectual property rights and other intangible rights and should be denied.Because the trademark of the later right object that causes the damage is a ternary structural symbol with the function of an information carrier,so it can be concluded that the essence of the prior right damage is that the unique meaning of its identifying right object symbol has been invaded.Third,a preliminary analysis of the relevant principles of prior rights protection.The principle of protection of prior rights is a principle clearly stipulated in the Trademark Law,and it is the primary principle for the protection of prior rights.The principle of good faith is not only the imperial clause of civil law,but also applies to the protection of prior rights.The principle of prohibition of confusion and fair competition points out the specific focus of the protection of prior rights under the cognition of the infringement of symbol meaning infringement.At the same time,it is necessary to safeguard the social public interest and consider the economic benefits of the system,that is,to apply the principle of balance of interests and the principle of benefit balance.Chapter III “the Type Analysis of Prior Rights Related to Trademark Law” screens the types of prior rights existing in theory and practice.Based on the conclusions related to the definition,characteristics,types,and essence of prior rights in Chapter I,a classification analysis of the types of prior rights that exist in the administrative and judicial practice rules,as well as in theory and comparative law,are carried out.Mainly discussed in two aspects: First,to screen other intellectual property rights,personality rights,and commercial identification rights clearly stipulated in China existing laws,through trademark features and registrations such as distinctiveness,non-functionality,inability to cause personality confusion,and independence of products or absence of space restrictions,etc.In the required review,only portrait rights and a very small number of copyrights and design patents meet the requirements.Second,investigate the types of potential prior rights such as rights of publicity,trade dress rights,and unregistered trademark rights that are not statutory rights in China,and make it clear that only those that comply with stability,certainty,single-mark identification and nonfunctionality,etc.Only the required prior rights can be harmed by the trademark right after registration.Chapter IV “Analysis of Restriction on the Exercise of Prior Rights in Trademark Law” mainly discusses in three aspects: First,analyze the basic theory of the restriction on the exercise of prior rights.According to the analysis and conclusions of the first three chapters,the conflict between prior rights and later trademark rights and the existence of trademark rights requires certain restrictions on the exercise of prior rights,while the current social-standard features and private and social dual attributes of civil rights provide the justified reason for the restriction.Prior rights can be restricted under the premise of following legal principles such as the principle of non-abuse of rights and economic standards such as preventing external diseconomy.Second,the restrictions on the exercise of prior rights are specifically expanded from the perspective of norm conflicts.One,there are conflicts between trademark law and civil law and other intellectual property laws in terms of protection,which has led to trademark law,especially the trademark administrative authorization confirmation system,being neglected and even evasive.Two,there are also conflicts between the trademark administrative system and the judicial system.The infringement litigation system has an excessive impact on the trademark administrative system,and the judicial power has overstepped the administrative power.Therefore,the protection of prior rights should be restricted in the legal system.Third,from the perspective of conflicts of interest,the restrictions on the exercise of prior rights are elaborated.One,the expansion of the scope of existing prior rights and the increase in the types of prior rights have caused excessive restrictions on trademark rights.Two,it not only caused excessive restrictions on trademark rights,but also caused damage to the interests of the entities related to trademark rights and the public interest due to excessive restrictions.Three,in practice,the protection of the so-called prior rights and interests that are not clearly stipulated by the law has also caused excessive restrictions on trademark rights stipulated by the law.Therefore,the protection of prior rights should be restricted in order to balance the interests.Chapter V “Suggestions on Improving the Prior Rights Protection System of China Trademark Law”.The improvement suggestions are mainly divided into four aspects:First,improve the basic institution for the protection of prior rights.In the trademark law,the definition of prior rights is clarified through the combination of definitions and key types of rights,and the criteria for determining the types of rights are defined as“the prior nature of rights,the identity of the object,the relevance of the object of rights and right in the trademark registration scope”,carefully include rights and interests in the scope of protection to prevent excessive restrictions on trademark rights.At the same time,it adopts the relativistic connotation of the principle of protecting prior rights,and carefully defines the circumstances that violate the principle of good faith,which not only prevents confusion caused by trademark rights,but also avoids unfair competition of prior rights,and ensures the balance of interests,taking into account benefits rather than restricting or even eliminate later trademark rights.Second,determine the standard of damage determination for prior rights.The objects of prior rights and trademark rights are signs with a shape,no substance,and a wide range of connotations,so they cannot be monopolized by any right holder.Therefore,the standard for determining the damage of prior rights is the uniform confusion standard for the sign rights,and the generalized confusion is mainly due to the difference in the symbol meaning of the rights.Third,coordinate the establishment of a systematic way of protecting prior rights.Combining the conclusions of Chapters III and IV,it is clear that the specialty and priority characteristics of the administrative protection of trademarks should be adhered to.At the same time,on the basis of confirming the characteristics of the relativity of judicial protection and the effectiveness of non-right change,clarify its supplementary and cohesive role to administrative approach in terms of behavior qualitative and civil liability.Fourth,design a system for restricting the exercise of prior rights.One,establish a system of implicit coexistence of prior rights and later trademark rights.Two,by signing a harmonious coexistence agreement and granting both parties the priority of transfer,it is clear that the rights of coexistence should be exercised in a standardized manner,and mutual destruction is prohibited to prevent secondary confusion.Three,limit the scope of damage compensation by accurately determining the contribution of prior rights and accurately defining the compensation calculation time.At the same time,the establishment of a prior rights compulsory license system allows later trademarks to continue to have a win-win situation,restricts prior rights remedies,and prevents prior rights holders from undue gains,thereby achieving a balance of interests and benefits.The innovations of this article are mainly reflected in the following four aspects:First,it is clear that the essence of prior rights damage in trademark law is the infringement of its symbol meaning.That is,the reason why the prior right is damaged by the subsequent trademark right is because the trademark infringes on the unique meaning of the prior right symbol.The second is to determine the standard of the likelihood of confusion for the determination of prior rights damage.A unified standard for the possibility of confusion of meanings of successive rights symbols within the scope of “mark similarity & similar category” has been formed.Third,improve the prior rights protection system led by the administration and supplemented by the judiciary.That is,priority should be given to trademark administrative procedures to fundamentally solve the key issue of the existence of trademark rights,which damages prior rights,so as to link and coordinate the judicial protection of infringement and unfair competition litigation.Fourth,design a system for restricting the exercise of prior rights.For non-malicious squatting trademarks,prior rights are restricted by signing coexistence agreements,setting two-way priority transfer rights,and setting compulsory licenses to reduce conflicts and infringements. |
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