Research On The Right Of Prior Use Of Trademark

Trademark right is obtained on the basis of two theoretical system:The use principle and the registered principle. The former determines a trademark belongs according to the order of the use of the trademark, trademark belonging to the prior use one;The latter determines the belonging of the trademark according to their respective dates of registration,and the trademark belongs to the applicant which was first filed。In China,the earlier application registration is necessary procedures and only program to obtain original trademark right.Generally, it is no theoretical obstacle protecting the prior use unregistered trademarks in countries that adopt the use principle, so these countries often provide the prior user with higher protection. But in countries that adopt the registered principle, it is too hard to provide the prior user with the Right of Prior Use of Trademark in theory. China, for example. Because conflict of laws will occur between the prior user and the trademark registrant, so it is necessary to set up the Right of Prior Use of Trademark to honor the labor of the prior user.This paper adhere to the position of existing trademark protection system, and opposes totally denying the rationality of the registered principle. In this premise, Reveal the problem of legal protection missing of prior use unregistered trademarks. In the final analysis, it is pointed out that protecting trademark is just to protect the goodwill in the trademark. In this sense, the writer explores the prior use trademark the rationality of the existence and necessity of protection. Through discussing the nature,objects, effectiveness,constitutions,limit and component of copyright infringement of the Right of Prior Use of Trademark, points out that it is necessary for our country trademark law to introduce the system of the Right of Prior Use of Trademark, to make up the problem of legal protection missing of prior use unregistered trademarks.This paper mainly adopts the methods of value analysis, comparative analysis, legal interpretation and case studying on writing, and divides into preface, text and ending three parts. Text has four parts. The first part named"The tectonic and limit of the Right of Prior Use of Trademark".This section is the emphasis, the difficulty and the main innovation about this thesis. In this part, the author detailedly discusses the nature,objects, effectiveness,constitutions,limit and component of copyright infringement of the Right of Prior Use of Trademark. Focus on thinking the conditions that can earn the Right of Prior Use of Trademark,analyse the problems that might exist in the system,and try to balance the interests between the prior user and the user of exclusive right of trademark.The second part named "The investigation of legislative cases on the Right of Prior Use of Trademark".This section describes the legislative cases on the Right of Prior Use of Trademark of many countries and regions,Including the international conventions,Anglo-American law and continental law system,and comments and summarizes their legislation results to reference and introspection legislation concerned in China.The third part named "The necessity for the adoption of Right of Prior Use of Trademark in our country", This paper discusses "The essential requirements of trademark","Offseting registered principle defect","The requirement of the honesty principle","The requirement of market economy","The Inevitable requirement of Voluntary register principle","The requirement of legal logic consistence"and "The response for the query of Right of Prior Use of Trademark" to demonstrate the necessity and rationality of the Right of Prior Use of Trademark.The fourth part named "The law tentative ideas on the Right of Prior Use of Trademark".Based on the above, we should consider the following three areas on establishing the system: fistly, the earlier user of a common unregistered trademark enjoys the Right of Prior Use of Trademark ; Secondly, the user of the Prior Use Trademark is entitled to break through the original regional scope to use trademark; thirdly, the one who Infringe upon a unregistered trademarks shall be liable for damages.Finally, The author puts forward concrete law tentative ideas on writing the Right of Prior Use of Trademark into law.