The Research On The Legal Protection Of The Prior Use Right Of Trademark

Registered trademark doctrine is practiced in our country,and it is based on the voluntary registration.In present Chinese market economy,there are numbers of unregistered trademarks utilized to label products and services like registered trademarks.Some prior-used trademarks which become widely known to numerous consumers due to continued use have not only won achieved trademark popularity and market creditability but also built a good reputation in the using process.The law is supposed to acknowledge the commercial value of the prior-used trademarks as well as to protect the legitimate interests of the prior user of trademark while safeguarding the legitimate interests of the holder of the exclusive right to use trademark.The prior use right of trademark means the right of continuing to use trademark that the law grants to the prior use right holder of trademark within the scope of the original goods or services under China's registration principle.The prior use right of the trademark in new Article 59 paragraph 3 of the third revision of the trademark law is intended to approve and protect the use of trademark from a legal perspective.Though trademark's legal norms have given recognition to the prior use right of trademark,the legislative analysis shows that there still are large quantities of ambiguous legal terms that result in low operability of the right in juridical practices,such as "the certain influence" "the original scope","additional specific identification".At the same time,the legislation in the prior use right of the trademark does not provide for prior use of trademark management and oversight mechanisms,making a lot of prior use of the mark appears regulatory state of disorder.Thus,it is necessary to improvement the legislative in the prior use right of the trademark.By law to standardize the trademark use behavior and protect the legitimate rights of trademark right holder,to ensure the healthy development of the economic society.There are a lot of the prior use rights of the trademark in the foreign trademark legislation.Legislative establish and improvement in the prior use right of trademark is the general trend in the development of the legal for the countries and regions in the world.Through the legislative in the prior use right of trademark,on one hand,it can balance the interest relationship between the prior use right holder of trademark and the holder of the exclusive right to use trademark,and also,it is conducive to demonstrating the theories of equity and justice as well as goodwill,on the other hand,it can provide legal basis for the judicial referee,security trademark infringement cases in a fair and impartial trial results.With the prior use right of trademark taken as the research object,this paper proposes the legislative suggestions about how to improve China's prior use right of trademark according to its theoretical analysis as well as relevant legislative studies abroad.In respect of legislative suggestions,more emphasis should be placed on standardization,concreteness,and reasonableness.Under the insist on the principle of trademark registration,be based on balance the interest relationship between the prior use right holder of trademark and the holder of the exclusive right to use trademark,specification standard of the prior use right of the trademark,clearly defined the specific contents of the prior use right of trademark and suggest that the construction of trademark use filing system.In order to protect the legitimate interests of the prior user of trademark,strengthen the regulation of prior to use trademarks and ensure the healthy development of the economic society.