Research On Conflicts Of Registered Trademark Right And "Prior" Rights

The conflicts of intellectual property rights are by-products of the development of the legal system of intellectual property rights,which can not be eliminated fundamentally.In recent years,more and more parties resort to the court for the conflict between registered trademark right and “prior rights”.Such cases are always complicated,difficult,and how to properly handle this kind of cases has become a difficult problem in judicial practice.Article 45 of <The Trademark Law of China>provides that where a registration damages the interests of any owner of “prior rights”,within five years from the date of registration,the owner of “prior rights” can request the Trademark Review and Adjudication Board to make a ruling to invalidate the trademark's registration.Where the registration was obtained with ill will and the owner of a famous trademark shall not be bound by the five-year limitation.This clause as a mechanism to resolve the conflict between registered trademark right and“prior rights” has both advantages and disadvantages.It has successfully resolved part of conflicts of above-mentioned rights,but it doesn't resolve all of them.If the owner of “prior rights” doesn't exercise the right of revocation within 5 years,when conflict occurs between the two coexist legitimate rights after 5 years,it doesn't make detailed provisions about how to choose and balance them,and the trial of such cases is a difficult problem which judicial practice and theoretical research are facing.The author mainly discuss the main conflicts of rights involved in Article 45 of <The Trademark Law>,namely the conflicts between registered trademark rights and“prior rights”,and make a brief analysis about Article 45 <The Trademark Law> to put forward corresponding suggestion for improvement.The full paper is divided into five parts,the main contents are as follows:The first part: The generation and nature of the registered trademark right and the "prior rights",to reveal the basic conditions of generation of conflicts of rights.The second part: The generation and main types of conflicts between the registered trademark right and “prior rights “.The author first discuss the cause of generation of conflicts between the registered trademark right and “prior rights”,second reveal the nature of conflicts of rights,namely conflict of interest and value conflict,then elaborate harm of conflicts of two rights,finally list the main types of conflicts of two rights,in order to make readers have further understanding aboutconflicts between the registered trademark right and “prior rights”.The third part: The basic principles of resolving the conflicts between the registered trademark right and the "prior rights",including the principle of honesty and credit,the principle of protection of prior right,the principle of balance of interests,the principle of compatibility of rights,and the benefit principle.the principle of honesty and credit refers to the obligee should be honest and trustworthy in the course of exercising their rights,and the obtain of rights not infringing maliciously the rights of others is the premise of protection of “prior rights”.The principle of protection of prior right is an important legal principle of resolving the conflicts of intellectual property rights.In <Copyright Law>,in order to encourage innovation,the exclusive right is granted to the first inventor.In <Trademark Law>,in order to ensure the trademark recognition function and quality assurance function,so the exclusive right is granted to the first civil subject applying for registration the trademark.The principle of balance of interests demands from the standpoint of making full use of social resources and protecting the public interests,balancing the interests between the obligees,private interests and public interests.The principle of compatibility of rights refers to in some certain conditions,two essentially conflicting rights can be allowed to coexist.Benefit principle refers to resolving the conflicts of rights should make maximizing economic benefits the starting point,and take count of equity simultaneously.The fourth part: The system of resolving conflicts between registered trademark right and “prior rights”.First interpret connotation of Article 45 of <Trademark Law>,then focus on the practice of Article 45 of <Trademark Law> by citing cases,finally make a theoretical analysis focusing on right of revocation and balance of interests.The fifth part: The existing problems and countermeasures of Article 45 of<Trademark Law>.First,put forward the problem unsolved,namely when revocation right is extinguished,<Trademark Law> does not stipulate how to balance the interests between naturally conflicting rights.Secondly,put forward the countermeasures,including compatibility of rights and additional identification system,and economic compensation system.