The Legal Protection Of The Priority Right Of Trademark Under The Principle Of Trademark Registration

China's Trademark Law adopts the principle of acquiring trademark rights through registration. Under this principle, unregistered trademarks could just enjoy a relatively weak protection. Yet there is no doubt that an unregistered trademark, meeting the requirements of a legitimate trademark and playing a role as a registered trademark, shall benefit from the protection of law. It is known as priority right of trademark that protection should be given to the unregistered trademarks which use prior to others'application for trademark registration and also obtains a good reputation.Priority right of trademark is different from trademark right. There are no explicit provisions of priority right of trademark in Trademark Law, and only a few in administrative regulations. In judicial practice, the person who prior uses the marks is not duly protected. This article analyzes China's legislative conditions and judicial practices in order to define each concept and specific system for the establishment of priority right of trademark mainly on the basis of study of the general concept of priority right of trademark, and proposes initial ideas of that establishment on the basis of analysis of the mature priority right system abroad and in combination of the situation of China.This article is divided into five sections:The first section basically analyzes priority right of trademark. The primary step is to grasp the basic concept and status quo of this system since there are no explicit provisions concerning priority right of trademark in China's Trademark Law. Priority right of trademark is established on the basis of trademark right. So this section first analyzes trademark rights and then introduces the concept of priority right and further proposes its constitutive elements: using prior to others'application for trademark registration, using a trademark which is identical with or similar to the registered trademark on the same kind of commodities or similar commodities, using in good faith, using continuously, and prior trademark with distinctive characteristics. This section next discusses legal basis of priority right of trademark to lay a foundation for its value orientation.The second section mainly studies legislative conditions and judicial practices of priority right of trademark in China. In legislation, although some vague concepts provide in administrative regulations, there are no genuine priority right of trademark in the narrow sense of law. In judicial practice, the person who prior uses the trademark usually shall first prove the registrant's bad will in order to be protected due to no definite provisions.The third section enumerates the problems in the establishment of priority right of trademark, mainly focusing on constituted elements and its content, of which there are no existing provisions in the current legal system. The fourth section introduces priority right of trademark of other regions and foreign countries in common and civil law system, such as America, England, Austria, Japan and Taiwan, China, and makes a comparison between these two legal systems to find out where we can learn.The fifth section conceives the establishment of China's priority right of trademark with respect to legislation and justice under the solution of some indefinite questions.