Research On The Application Of The Prior Use Of Trademark

Right of prior use of trademark which is established in the trademark law, becomes an important issue in recent legal science. Its building not only make up for the lack of right of prior use of trademark at the system level, and demonstrates the protection for the good faith management of operators. However its standards in practice still have obvious defects. This paper mainly analyzes three applicable elements about right of prior use of trademark to solve the problems existed in it, they are the prior to use and its certain influence, the original scope and additional appropriate identity.This paper is divided into following five parts including introduction:The first part introduces the prior to use and its certain influence, the original scope and additional appropriate identity, and analyzes the lack of standards by introducing an case. And then proposes the problems existed in right of prior use of trademark.The second part mainly researches the value goal of right of prior use of trademark. right of prior use of trademark means the first user can continue to use the trademark in the original scope under the condition of certain situation, when goodwill first prior user conflicts with the registered trademark of people for the interests. This part is based on the definition of the concept for its system value goal of.The third part mainly introduces the applicable premise: the prior to use and its certain influence. This part is based on the practice, analyzes the certain influence from the aspects of theory and judicial practice, and extracts three main factors about identifying the certain influence, namely the certain range, relevant public and familiar degree. It explained the standards of the certain influence has the necessity to clear in practice level.The fourth part mainly introduces the validity of right of prior use of trademark: continue to use in the original scope. This chapter focus on analyzing the original use scope‘s two perspectives, namely the original use of regional scope and the limiting to the category of the original use of goods or services, the author thinks that the latter is more in line with the aim of right of prior use of trademark, which confirms the interests balance and real need of the current rapid development of e-commerce.The fifth part mainly introduces right of prior use of trademark of obligation: attaching suitable discriminative mark. This chapter focus on researching the additional ways of attaching suitable discriminative mark and the principle of appropriate difference marks. The author thinks that we must identify attaching suitable discriminative mark with the principle of the public’s attention and judge judgment to avoid confusing the legislative purpose.