On The Prior Use Right Of Trademark Under New Trademark Law

The system of the prior use right of trademark was established by 2013 New Trademark Law for the first time in China, which improves the system of legal protection of unregistered trademarks. By reference to the research and legislative status of different countries or regions, this paper systematically expounds the theoretical basis and system structure of the prior use right of trademark on the basis of which further analysis is provided. On the one hand, this paper outlines and analyzes the main legal issues on theory and system of the prior use right of trademark. On the other hand, it provides systematic analysis on provisions of the prior use right of trademark under New Trademark Law, and gives further suggestions on how to apply them. Besides the introduction and conclusion parts, the body of this paper is divided into four parts:The first part is about the overview of the prior use right of trademark. This part firstly defines the concept and nature of the prior use right of trademark, and then addresses the context of the prior use right of trademark, which specifies the legal interests in trademark law and values of the prior use right of trademark. With the evolution of the system and judicial focuses, this part provides analysis on protection status of the prior use right of trademark.The second part analyzes the constituent elements of the prior use right of trademark. This part firstly analyzes the constituent elements of the prior use right of trademark in terms of comparative law, and runs through the design patterns in trademark law and general provisions about constituent elements of the prior use right of trademark. Secondly, this part analyzes the impact from the development of new technology to the constituent elements of the prior use right of trademark, which focuses on the changes of the use of trademark and its effects on the identification of the constituent elements of the prior use right of trademark. Finally, from the perspective of application of provisions, this part gives further analysis on the specific elements of the prior use right of trademark under New Trademark Law.The third part is about the contents and limitations of the prior use right of trademark. In the first place, this part introduces the contents of the prior use right of trademark, which specifies the right of continuous use and other specific powers belonging to the prior user. Then, this part points out the necessary restrictions on the prior use right of trademark, which clarifies the boundary of the right.The fourth part focuses on the exercise of the prior use right of trademark. Firstly, this part introduces the general principles of the exercise of the prior use right of trademark, and then analyzes the exercise of the prior use right of the trademark in the view of comparative law, in particular the scope of the right of continuous use and the obligation to prevent confusion of the prior user. Finally, from the perspective of application of provisions, this part gives necessary analysis on the exercise of the prior use right of trademark under New Trademark Law.