To Discuss The Prior Use Defense System For The Trademark

Before the amendment of the new Trademark Act, the prior use right of the trademark prior user is not certain by the law. Because the exclusive right to the trademark has been acquired by taking the registration principles of prior application, prior use do not generate any rights. As a result, before the provisions of the previous regime, when the trademark rights of people who filed for prior use of trademark infringement lawsuit, these has been controversy on whether to debate basing on prior use. In many interests conflicts between the trademark owners and the prior user, this leads to different results in similar cases. The new Trademark Law which refers to prior use defense system succeeds in eliminating the long term differences in this judicial practice. The prior use defense system, as one of the important systems to defend the prior use of legal interest, plays a pivotal role in balancing the interest conflicts between the person with prior use authority and the person with trademark rights. This article probes the property of prior use form four different relative doctrines about the prior use property to clear the theoretical foundation of the prior use in legislation. In this article, based on the law and the current legislation situation of the prior use defense system, the specific elements of the system is fully analyzed. And the article differentiates the prior use defense system with the prior rights and the well-known trademark protection system to define the situations where the system is applicable. Also by taking case study, the cases before and after the prior use defense system was adopted by the legislation are compared to confirm the necessity of adding the system into the legislation. By enumerating the cases after the amendment of the new Trademark Law, the problems during the judicature fulfillment are illustrated. As the lack of the stipulation to judge the obligation incurrence when the regime was in legislation, this article focus on the dissertation of this problem, the analysis of the demerits of the existing laws and puts forward proposal for refinements.