Research On Prior Rights And Interests In Examining Trademark Application Under Chinese Trademark Law

Strictly speaking, prior rights and interests and prior rights are different legal concepts. The concept connotation of prior rights and interests in examination for trademark registration application is wider than prior rights, which refers to the prior rights and prior interests. The trademark law’s using of "prior rights" is that it mix up "prior rights and interests" and "prior rights". The principle of priority protecting prior rights, principle of honesty and credibility, principle of preventing market confusion, and principle of fair and reasonable should be followed when dealing with the problem of prior rights and interests in examination for trademark application. The articles on the trademark law also embody the spirit of basic principles to different extent. On the guidance of the basic principles, according to the theory research, judicial practice and relevant experience on comparison law at the same time, the prior rights and interests can be divided into three forms:the legal rights which has been set protecting requirements expressly on the elements of civil law, the legitimate interests which do not expressly set protection requirement but really necessary to protect, and other interests which do not reach the standard of interests protection but according to civil law principle of good faith should be protected. As to the different forms of prior rights and interests, the protection should meet the different legal requirements. As for the legal rights which has been set protecting requirements expressly on the elements of civil law, it should not pay attention to the subjective state of the offender but need to meet certain objective elements. As for the legitimate interests which do not expressly set protection requirement but really necessary to protect, compared with the prior right, they shall meet the requirements of more legal protection, especially the popularity elements. As for other interests which do not reach the standard of interests protection but according to civil law principle of good faith should be protected, we should emphasis whether the behavior of the actor to apply for the trademark is in violation of the principle of honesty and credibility. When prior rights and interests are damaged, obligee can get relief not only through the administrative way of trademark objection and trademark disputes but through the ways of civil relief. And in order to remedy the shortage of the civil tort lawsuit, the civil right verification suit can be introduced as a feasible way. After clearing the specific types of prior rights and interests, protecting requirements, and the relief way, from view of legislative style of prior rights and interests, scattered legislation has the problems of content overlapping and Judicial application chaos, article31of the trademark law stipulating different levels of content in one paragraph is also not in conformity with the general logic of legislation, so all these need to be completed through concentrated legislation to rule the prior rights and interests according to category.