Research On Trademark Prior User Right

Being similar with patent right, trademark right also is an exclusive right, whichcan prohibit others from using trademark without the owner’s authorization. Buttrademark right is different from patent right in the focus of their protection, with theformer focusing on the investment of the prior user while the latter focusing on thegoodwill established on the trademark as well as the reliance interest of consumers’towards the trademark.Starting from the fundamental theory of trademark prior use right, Chapter1makes a definition based on the legislation as well as the academic point of view.Compared with countries that confer exclusive right to the person who firstly used thetrademark, countries that confer exclusive right to the person who firstly appliedtrademark registration should pay more attention to the protection of prior usedtrademark. By modification, our trademark law added some contents about protectingunregistered trademark; however, it doesn’t mean that we have established trademarkprior use right within trademark field. Without trademark prior use right, ourtrademark theory is imperfect. What’s worse, it also leads to the inconsistency of thesimilar judicial decisions. So it is important to establish trademark prior use right.Chapter2analyzes the relationship between trademark prior used right andtrademark right. In countries that confers exclusive right to the person who firstly applied trademark registration, trademark prior use right should be narrower thantrademark right. Trademark right includes right of exclusive use and right ofprohibition; while trademark prior use right refers to right to continuously usetrademark in the old scope. Dividing from the roles of different rights, trademarkexclusive right belongs to right of defense. The right of prohibition shouldn’t beincluded in trademark prior use right, the assignment and permission should belimited. Meanwhile, the right to apply for concurrent registration of prior usedtrademark and registered trademark shouldn’t be allowed to maintain the authority ofregistration system.Chapter three based on the legislations of the Common Law System and theCivil Law System has a discussion on the constitutive requirements of trademark prioruse right. The thesis makes an choice on the disputes by standing on the position ofthe countries that adopt registration doctrine.Chapter four summarizes the legislation defects of our Trademark Law on theprotection of prior used trademark, and proposes some legislative suggestions, whichinclude establishing the substantial right—trademark prior use right—based onregistration system. Finally, the thesis offers some suggestions about how to modifythose existing procedural articles of prior used trademark protection.