Research On Trademark Prior User Right

Someone who has used use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods before the registrant obtains trademark rights, uses the trademark without the authorization from the trademark after the registration is suspected of infringing the registered trademark right. In the judgments of judicial practice on trademark infringement, different courts show different attitude on prior use defense. The essence of this issue is the conflict of interest between the prior user of the unregistered trademark and the registrant. In this paper, starting from domestic judicial practices, some typical cases are analyzed and classified, in order to summarize the attitude of the courts on whether prior use could be defense to trademark infringement. And then I will point out the issues existing in legislative, judicial practice and the theory of trademark law, analyze the grounds and the how could prior user right be the defense to trademark infringement and then put forward legislative proposal for the development of our trademark law. There are four parts in this paper.Chapterâ… is the empirical analysis on the typical cases concerning prior use defense to trademark infringement. In this paper, several typical cases are selected and sorted out to classify the attitude of the courts on whether prior use could be the defense to trademark infringement. On the ground of this, I will point out the essence of this issue to be the conflict of interest between the prior user and the registrant. There is no prior user right in domestic legislative system, which owes to the difficulty to resolve the conflict.Chapterâ…¡reviews the lack of legislation about prior user right in domestic legislative system. is about the application premise. There are different system of acquisition of the trademark right in different country, including principle of using and principle of registration. The function of registration is to make convenient for the trademark user and improve the efficiency of management, however the principle is distorted to some extent to make the trademark law with some characteristic of executive law, which is private law in essence. The actual use of the trademark is gradually ignored, and more attention is paid to the registration, which misleads the court to protect the trademark right without balancing the interest between the prior user and the registrant when their interests are conflict, in which the interest of the prior user should be protected under the principle justice in civil law.Chapterâ…¢is about how could prior user right be defense to trademark infringement. On the bases of analysis of the different concepts of prior user right, I will point out the function of prior user right, and then discuss the famous unregistered trademark prior user right and common unregistered trademark prior user right, with which I put forward my opinion on the concept and the nature of trademark prior user right.Chapterâ…£is about the legislative suggestions of building and improving the domestic trademark prior user right system. With the analysis and comments on our domestic legislative and judicial situation, this paper raises the corresponding solutions for problems that respect the private right essence of trademark right, pay more attention on the actual use of trademark and make legislative provision of prior user right in domestic trademark law.