The Understanding And Application To Defense Of Prior Use In Trademark

In china,applying for registration is the legal way to obtain the exclusive rights to use trademark.Under the principle of registration,it lacks legal basis to protect the prior use right of unregistered trademark,which is difficult to obtain practical and effective legal protection.There is disagreement about defense of prior use in the field of judicial practice and theory before the newly modified Trademark Law.The unregistered trademark exists the possibility of being accused of infringement of registered trademark.The Article 59 section 3 of the newly modified Trademark Law becomes the legal support for the defense of prior use,balances the interests of prior users and registers reasonably.Besides,preemptive registration of trademark can be avoided.The related article is abstract.Therefore,in order to balance the interests of prior user and the post registrants better,we need to define the content and the elements of the prior use right of trademark,clarify the theoretical basis of the protection of prior use,Based on the above considerations,the author from the aspects of historical evolution,concept, legislation and practice,discusses the background and significance of defense to explain the article in order to ensure the practice effect.