Research On Protection Of Prior Use Trademark

Over the world trademark theoretical system,trademark right is obtained by twomeans:the use principle and the registered principle.The former determines atrademark belongs according to the order of the use of the trademark;The latterdetermines the belonging of the trademark according to their respective dates ofregistration.In China,the earlier application is the necessary procedure and the onlyprocedure to abtain original trademark right.For the most countries in terms of thecommom law,protection of prior use trademark are generally not theoreticalobstacles,but for countries with the registered principle,there is trouble to protect theprior use trademark.In China,as to the protection of prior use trademerk,there is greatmissing in addtion to the well-known trademarks.There is great conflicts betweenprior user and the goodwill after register,so it is necessary to protect the prior userand achieving a balance between the two.This paper adhere to the position of the existing trademark protection system.Asummary of30cases in judical practice come out the need to protect the prior usetrademark.In theory,the theoretical basis to protect prior use trademark for commomlaw countries is that prior use aquire trademark rights.And in this sense,in our countrythe essence to protect the prior use trademark is protecting the condensation of thetrademark,in the case of other protection methods do not work,only to introduce newlegislation before they can solve this problem.This paper mainly adopts the methods of comparative analysis,case studying onwriting,and divides into preface,text and ending three parts.Text has four parts. The first part named "The review of protection situation on proir usetrademark",This section is the introduction of the article,by the comparison andanalysis of30cases I collected,draw the current judicial practice falls far short on theview of the protection of prior use trademark:Some Court held that prior use can notcreate any rights,Some court held that prior use trademark against the registeredtrademark,Some court held that the prior use is not against the registered trademark,but you can continue to use within the original scope of the original trademark.Whichproduced a different verdict, there is great need for a unified.And it is our existing lawthere are loopholes in the legislation that led to the occurrence of the phenomenon.The second part named "the theoretical basis of the protection on the prior usetrademark".For Common law countries,protection of prior use trademark is the propermeaning that use can produce trademark rights, Some civil law countries provideprotection for the prior use trademark in order to compensate for the lack of protectionof the interests of the registration system.I I believe that in theory,the essence toprotect the prior use trademark is protecting the condensation.The second part named "The premise to protect the prior use trademark",this partis the emphasis,the difficulty and the main innovation of the paper.By introducing alarge number of common law cases,and comparing and analyzing the jurisprudence inthe details of the current judicial practice,the author detailed discussed six areas ofprior use trademark:Prior use objects and time, content, subject, legitimacy, continuity,in good faith, and come out the conditions to earn the protection.The fourth part is "The idea of the legislation on protection of prior usetrademark",mainly discussed the legislation mode we should use to protect prior usetrademark.I believe that our country should take the mode that prior user can continueto use the trademark,not against a bona fide registered trademark.By doing this try toget a balance between the prior user and the user of exclusive right oftrademark.Referring to foreign legislation and judical practice in China,the authordrafted the specific provisions on protecion of prior use trademark.