Comparative Study On The Principle Of Prior Right In Trademark Laws Of France And China

It’s difficult for the prior rights system in trademark law of China to resolve the conflicts between the registered trademark right and the prior rights in practice. It is more mature for the prior rights system in the "Intellectual Property Code" of France which is the model for the protection of intellectual property rights in the world. It is beneficial for improving our prior rights system in the trademark law to compare them in the two countries and explore some advantages to learn. Making the trademark registered is the common principle in both France and China. And that is the precondition in system of comparison.After learning the existed achievements and clarifying the basic meaning of the principle prior right, this paper does the comparison from the prior rights and the system of building the later registered trademark rights、the system of making the later registered trademark rights be continuing. In the first chapten, the author explains the purpose and significance of comparison and searches the direction and points of this paper. In the second chapter, the author lays a foundation for the following parts by clarifying the basic meaning of the principle of prior right. The prior right is a civil right enjoyed by the subject before the generation of a new right.It has an identical or similar but conflicting object to the new one. And the two objects belong to different subjects. The principle of prior right is neither the prior right, nor the right to relieve prior right, but a principle to solve the conflicts between the new right and the prior right, and it investigates only the form of the rights. The principle of prior right in trademark law, refers to the principle of protecting the prior right legitimately by the functional authority of state organ or the request of the subject of prior right,when the registered trademark or its element conflicts with the civil right obtained by another subject according to relevant laws before the filing date of a registered trademark.From the third chapter to the fifth one, the author does the comparison respectively from the prior rights, the system of building the later registered trademark rights and the system of making the later registered trademark rights be continuing. The systems in the two countries both have their own advantages. And we can learn some disadvantages of the system in China:(1) the guidance clause of prior rights does not exist;(2)in the system of building the later registered trademark rights, we lack the protection to the trademarks being put abroad, and the review process of registering trademarks is ineffective and injustice;(3) in the system of making the later registered trademark rights be continuing, the first disadvantage is that in trademark invalid system, the restriction to the prior rights is not comprehensive enough and this system depends too much on the administrative procedures, and the second is that there is no establishment of litigation system to claw back the ownership of the registered trademark, and the third is that in the system of coexisting of the prior and the later ones, the restriction to the prior rights is not comprehensive enough. In the sixth chapter, the author put forward the countermeasures.The innovation points are:(1) Putting forward independent opinion on the meaning of the principle of prior right. The principle of prior right is neither the prior right, nor the right to relieve prior right, but a principle to solve the conflicts between the new right and the prior right, and it investigates only the form of the rights.(2) doing the comparison from the prior rights、the system of building the later registered trademark rights and the system of making the later registered trademark rights be continuing, and doing a more detailed, deeper and broader research on the prior rights system in France and China on the basis of the existed achievements.