Research On The Prior Rights System In Trademark Law

After amendment in2001, pre-existing rights system has been established on the trademark law in China. However, there still are some defects on it due to legislative reasons, as to improper to social practice. Although domestic scholars have discussed a lot about pre-existing rights system, their focus is mainly on the scope of it. On the basis of researches by them, this article analyzes the pre-existing rights system in China comprehensively by compare to relevant foreign legislations.The first chapter of this article is focus on the concept of pre-existing rights. It is point out that the pre-existing rights consist of three features:existing before the trademark rights, similarity on the object, and legality.The second chapter is about the scope of pre-existing rights. It introduces the scope of international treaties and foreign trademark laws at begin. It points out that the first phrase of Article31is a common provision, and the rest articles such as Article13, Article16are special provisions. The last section analyzes the opinions of domestic scholars, and put out that although some rights are protected by special laws, they still should be included in the scope of pre-existing rights.The second chapter concentrates on the protection for pre-existing rights. First, it divides the protect mode for pre-existing rights into two types:negation and revocation of trademark registration and restriction to trademark right. According to the two types, it introduces the protect mode by international treaties and foreign trademark laws. Section2analyzes the protect mode for pre-existing rights in China and the constituent elements for damage pre-existing rights behavior. And it is point out that the "damage" provided in Article31is not an infringement, nor an possibility to infringing, nor the loss of opportunity to register an trademark, but the loss of interest by exchanging influence power in the pre-existing. The last of this chapter explains the defects of protection for pre-existing rights in our country.According to the analysis before, compared to the draft of3rd trademark law amendment, the last chapter addresses some advises separately on the concept and scope of pre-existing rights and the protection for it.The pre-existing right system in trademark law plays an important role on protecting the pre-existing right and the interest of consumers. It is hoped this article may be helpful to the coming3rd trademark law amendment...