Research On The Prior Use Right Of Trademark System

Look at the laws in every country, there are two main forms of obtainingtrademark right, they are the registered principle and the use principle. The prior useright of trademark is raised in countries that adopt the registered principle, but it isno theoretical obstacle protecting the prior use unregistered trademarks in countriesthat adopt the use principle, and the prior user of trademark is able to obtained goodprotection. But in countries that adopt the registered principle, they protecttrademarks on the basis of obtaining trademark right through registering.The effortsto protect unregistered trademarks is seriously insufficient. The prior usingunregistered trademarks exist the possibility of being accused of infringement ofregistered trademark right, in order to prevent this possibility, it is necessary to setup the prior use right of trademark.This paper adopts the methods of value analysis, comparative research and casestudying to comprehensively study the prior use right of trademark. First of all, therediscussed the concept, the protected object and the theoretical basis of the prior useright of trademark. There focused on the legal structure of the prior use right oftrademark and the exercise of the right. It is pointed out that there exists deficiencyon Chinese prior use right of trademark, and then put forward specific and perfectmeasures by comparatively studying the prior use right of trademark of foreigncountries and Chinese Taiwan region. The full text is divided into introduction, bodyand conclusion in the structure, in which the body is divided into five parts.The first part is “the summarization of the prior use right of trademark”. Firstly,there listed different concepts and definitions about the prior use right of trademarkby scholars, and gave my own definition of the prior use of trademark. Secondly,there introduced the type of protected object of the prior use right of trademark, andit was divided into unregistered well-known trademarks, unregistered trademarksthat have certain influence after use and unregistered ordinary trademark to protect.At last, there discussed the theoretical basis of the prior use right of trademark to establish. There mainly stated from there aspects of the trademark essence, theprinciple of fairness, and good faith.The second part is “the legal structure of the system of prior use right oftrademark”. This part mainly discussed four constitutive requirements of the prioruse right of trademark.The third part is “the exercise of the prior use of trademark”. This part definedthat legal nature of the prior use of trademark at first. There put forward twoviewpoints, they are “statement of the right” and “statement of infringementdefense”. Secondly, there discussed content of the right, the extent and manner ofexercise of right and restrictions imposed in the exercise of the right. This section isthe main content of this paper.The four part is “comparative study on the prior use right of trademark”. Thispart mainly introduced legislation of the prior use right of trademark of American,England, Germany, France, Japan, and Chinese Taiwan region. Then there analyzedand compared their legislative achievements to provide a reference on perfectingChinese prior use right of trademark. This part is important and difficult point of thepaper.The five part is “the improvement of the system of prior use right of trademarkin China”. This part analyzed our present protection framework of the prior use rightof trademark. There points out shortcomings of our prior use right of trademark andthen puts forward some improvement measures. This part is also important anddifficult point of this paper.