On Application Of Trademark Prior Right

Trademark prior right in our country is not a new concept, before the new trademark law of our country in the form of legislation confirmed the prior to its legal status, in judicial decisions have admitted its legal cases. The existing market interests and the registered trademark right of prior use of trademark system in the prior use of the balance of the interests has played an irreplaceable role. The new law just revised relevant legal provisions, the first use of trademark rights in the application will inevitably have some problems, this is the inevitable contradiction complex legal provisions and the reality will exist. Based on this new legislation background, to explore the applicable rules of the right of prior use of trademark, make analysis on various cases in our country, for our country the right of prior use of trademark practice in the application suggestions.The first part is the overview of the right to use the trademark first. Respectively is the coexistence of the trademark system’s historical origin, trademarks, first with the relationship between trademark right and coexistence, trademark first with the essence of the right and prior use people enjoy trademark first with the right conditions is expounded, the focus is on prior use people enjoy trademark first with the right conditions are discussed, combining different world views, the author supports view.The second part as the case analysis, the case in the judicial practice of our country about trademark first with the right applicable selected three with typical cases, to describe China’s current trademark first with the right to apply to the basic rules, laying the groundwork for the following the rules about the application of domestic trademark recommendations.The third part from the theory of up rules on the use trademark prior right are discussed, and mark the first with the right to apply for prior use of trademark regional, mainly discuss prior user how to use prior trademark discussed. Emphasis is placed on the discussion of prior use people continue to make limited by the scope of trademark, the author thinks that will continue to use the "original" defined in the geographical range of the original and does not allow the expansion of production scale is debatable, add the necessity of proper identification and how the specific operation, as well as the trademark right of prior use of the following problems are also discussed.The fourth part as part of the improvement of rules about the application of our country’s trademark prior rights, summed up the four point China’s new "trademark law" provisions of the trademark first after the legal provisions of the right of fuzzy point with, according to the specific recommendations. The author suggests to relax "the original scope" restrictions on geographical scope and production scale, allows individual breakthrough, the prior use of trademarks must be requirements for practical use, continued use, add the right of prior use of trademark people subjective bona fide, for the "influence" required relevant consumers are aware of the extent to make the explicit stipulation.