Research On Application Of Protection Principles In Prior Right Of Trademark Law

As the globalization of economic, people are increasingly aware of the importance of the property right. In the area of trademark, the commercial value of trademark attracts more and more attention. In recent years, cases of preemption of the trademark and “free ride” are often talked about. For example, the names of some famous people like “Jordan”, “IVERSON”, “Lin Shuhao” are registered as trademarks. Some century-old stores, calligraphies and paintings are registered by some other people as trademarks. All these cases reflect the confliction of trademark right and prior right. It is worth considering that how to examine and choose a appropriate principle to settle down trademark right disputes and prior right infringements, how to balance the protection of trademark rights and prior rights, so as to protect the prior right more effectively. China’s trademark law sets general rules to protect prior right and confirms the principle of protecting prior right, but the law fails to determine its concept and range, and fails to give a clear definition of its identification standard and its application scope. In practice, the conflict of rights is diversified and complicated. With imperfect regulations, understanding and application of “protection of prior right” are always different, resulting in court referees and judges ruled contrary situation. Following are the focus problems in the area of trademark: the balance of the legitimate rights between the trademark holder and the owner of prior right, the correct understanding and application of “protection of prior right”, the prevention and solution of the conflict between trademark right and prior right. To settle down the disputes between trademark right and prior right, three steps are necessary to be taken: first of all, defining a precise scope of prior rights which are protected by the Trademark Law; secondly, establishing specific judgment standard of prior right infringements caused by trademark right; finally, implementing reasonable applications of solution principles in the conflicts of trademark right and prior right. Only by clarifying the rights and obligations of the two parties, and preserving the balance between obligees of trademark right and prior right, the best efficiency of solving the disputes liberally can be achieved. We can improve the prior rights protection from either legislative or judicial levels. On one hand in law-making area, there is an urgent need to establish intellectual property coexistence management and compulsory licensing system, also a mechanism of merchandising right is required as well. On the other hand in the field of judicial practice, applying principles such as fair benefit and invalidation of rights, and keeping balance to protect and actualize the legitimate rights and interests of the prior right owners and trademark right obligees in the accordance with the idea of “protecting prior rights”, a win-win situation could be achieved eventually.