The Identification On "Certain Influence" Of Trademark Prior Use Right

"The People’s Republic of China Trademark Law" was set and implemented in 2014, May 1. The Article 59, paragraph 3 in this law provides prior user the possibility of using the registered trademark without infringement. It’s the first time to conform this right by law, which is intended to make up for the deficiency of trademark registration, as long as to protect the party of honesty. But according to the law, especially the application of this article, there’re still some problems, such as making away from telling whether it is "certain influence" or not and confused with "certain influence" in Article 32. On the one hand, the lack of specific standards on "certain influence" caused the difficulty of the application. On the other hand, in the legislative level, the use of the same expression of different rights caused the confusion.So this paper is meant to put forward the specific standard identification of the trademark prior use right and the advices on application by comparing the difference laws or cases between domestic and foreign.The first part of the paper is divided into two sections. Firstly, we briefly introduce the "certain influence" in trademark prior use right, and find out the confusions upon Trademark Law provisions. Secondly, according to existing cases, we sum up the various problems in identifying "certain influence" of trademark prior use right, which caused by the confusions of laws. There mainly exists four problems: 1) do we have to identify "certain influence" ? 2) identification factors and the standard are not uniform. 3) the laws of the identification are not uniform. 4) evade the identification of "certain influence" in the judicial practice. At the end of this section, we point out the key to these problems together with the solutions, and further establish the uniform identification standard.Due to there is still not a specific standard of "certain influence" in trademark prior use right in China. So, in the second part, we draw lessons by comparing countries and regions succeeded in registering of trademark right(Japan and Chinese Taiwan), in using of trademark right(America), in mixing of trademark right(Germany). The essence of identifying "certain influence" is to identify the trademark recognition and the region factors should be limited to an interval.The third part is the construction of the identification standard of "certain influence" in trademark prior use right, which is one of our innovative points the core of this paper. In this part, we solve the problems reflected in the judicial practice from three sections. The first section describes the principles of specific standards to support "certain influence" in trademark prior use right. All of the identification in three sections are under the guidance of the two principles. In the second section, from the perspective of the subject and object, we propose two novel methods. Moreover, we creatively put forward the value comparison method to deal with the cases that well-known or objection trademarks apply to the trademark prior use right. The third section is concrete construction of the definition of trademark factor method, contains regional factor, time factor and other factors. We mainly focus on regional and time factors. To define regional factor, we adopt interpretation system method. Specifically, we first analysis the popularity of different grades of trademark, formulating the lower regional scope limit of "certain influence" in trademark prior use right by administrative division, and the upper regional scope limit by analyzing different right effects. On the time factor, according to analysising the property of trademark prior use right and our country’s trademark acquisition system, we get the only time identification standard, and expand the scope of trademark prior use right by means of reducing the inspection time.The fourth part is the summarization of the above analysis, educing the method to solve the Judicial Dilemma, that is, the establishment of a unified identification standards, including the unified factors, regional and time standards.