The Study Of Trademark Registration Infringement On Prior Rights

Intellectual property as an invisible Trove,, is widespread concerned by thesociety,because its value increases gradually. Thus, the some rights confliction occur.The conflict between trademark and other prior rights is on behalf of that."Trademark Law" Article9, Article31statement that application for registration ofthe trademark must not infringe the prior rights.The first chapter introduces the definition, characteristics of the prior rights andthe scope of the priority right, on the basic of which prior rights are classified intothree sorts. Prior rights are legal civil rights and can forbid the later trademark to beeffective which are occurred before the date of application for registered trademark orpriority date. Prior rights must have three characteristics: the first time; the possibilityof conflicts; rights confrontation of relativity. Only if meet these threecharacteristics,rights can become the prior rights according to the Trademark Law. Inreal life, the prior rights are mainly three types: the first type is the mark rights,including prior trademark, trade name right; secondly, other intellectual property,including copyright, design patent. the third one is other civil rights, mainly name,portrait right.The second chapter discusses the standard of which application for a registeredtrademark infringes the prior rights. The first criterion is whether the right is the priorrights in the sense of "Trademark Law"; secondly, to distinguish the subjectiveelement between malicious and goodwill; Finally, identify the specific criterion on different classifications in good faith. Mark rights requires consideration of thestandard confusion. Other civil rights also need to consider it, but the basis of twoconfusion is different, the confusion of mark rights generates of the use, whereas thatof other civil rights comes from the confusion of rights, because the rights are notexclusive. Other intellectual property is no need to consider the situation of confusion,but the difficulty is to provide evidence of the existence of the rights.The third chapter discusses how to solute the conflict between the application forregistration of trademark and prior rights. Divide into two cases according to whethera trademark is registered legally. One case is not registered,when dispute theinfringement and solution; the other one is registered,when the only solution is torevocation. In good faith solve the confliction according to the following threeprinciples: respect for prior rights, the principle of efficiency principles and rights atfailure. These three principles are also applicable order. Firstly, respect the priorrights;secondly,efficiency; thirdly, lapse. Application the principles need complywith orders. Firstly, prior rights should be respected, then, on this basis, if the valueof the trademark is much higher than the prior rights, we should follow the principleof efficiency, when the trademarks should not be revoked.In this case, certain priorrights should be paid as license fees, which should be at least2times as the similarcondition with voluntary license. Lapse is an exception, if the owner of the priorrights may or should know his rights has been damages for5year, he can not requestrevoke the trademark.