Research On Application Of Trademark Prior Right

The senior user is entitled to the trademark prior right by using a mark that is identical to or similar with a registered mark in commerce. The prior trademark right confers the senior user the right to continue using such a mark for original purposes. The Article 59.3, Trademark Law is the defense clause of prior use right. The clause makes up for the lack of protection of the senior user, and strengthens the protection of unregistered trademarks in our registration-based country. But the provision is abstract, how to understand and apply it are very important. From the analysis of Article 59.3, Trademark Law and the judicial cases, this papper sums up the problems of the application and limitation elements, ultimately discusses the application conditions and scope of Article 59.3, Trademark Law. In addition, this paper puts forward the corresponding legislative suggestions for the improvement of the trademark defense clause of prior use right.Both theoretical and comparative analysis are adopted in this papper, and the paper can be divided into three parts, i. e., introduction, text, and conclusions. There are four chapters in the text.Chapter I overviews the background and theory of trademark prior right. Through the interpretation of Article 59.3, Trademark Law, this papper reveals the deficiencies in the clause. Through the investigation of judicial practices, this papper points out the judicial application problems. By summarizing the existing views, we generalizes two controversies of the application of Article 59.3, Trademark Law--enforcement requirements and constraints. Before solving these controversial issues, subsection I analyzes the nature and theoretical fundament of trademark prior right, providing research context and rationale for solving these problems below.Chapter II discusses the controversial issues on the enforcement requirements, due to the limited space. The papper analyzes the subjective elements of the application on the trademark prior right. This section discusses that whether we should examine the prior user’s subjective state of mind. And if examined, which way to express, positive or negative expression. Section II discusses the "prior use" requirement of trademark prior right. This section turn to study the defination, the continuity and regional requirement of prior use behavior. Section III discusses "a certain reputation" elements of trademark prior use. To provide a reference for the application of the “a certain reputation” element of Article 59.3, Trademark Law, the part compares the laws of other countries.Chapter III analyzes the limit factors of trademark prior right. This chapter discusses three questions: the scope of original use, the addition of distinctive mark and the limitation of transfer of trademark prior right. The part I discusses that whether the first user should be subject to restrictions on production scale and geographical scope, and puts forward the judgment factors of the scope of the original use. The part II puts forward the proposal that when to add the distinctive mark and how to add it. The part III dicusses that whether we should allow the inhert or transfer of trademark prior right.Chapter IV offers several suggestions for the application of Article 59.3, Trademark Law. The part I proposes three principles that can guide the judicial practices. The part II are the specific recommendations on the application of trademark prior use. The recommendations are divided into two parts. Part I brings Article 59.3, Trademark Law to completion. On the base of in-depth study in chapter II and chapter III, we suggest that the trademark prior use clause should add some elements to mark it be effective in resolving conflicts between prior trademarks and registered trademarks. Part II draws up some rules of trademark prior right for the Regulations on the Implementation of the Trademark Law.