The Study On The Application Of Law In The Right Of Prior Use Of Trademark

The trademark registration system has been practiced for many years in our country,It’s protection of property rights clear and meet the legal system to ensure economic stability and efficient characteristics has made outstanding contribution to China’s market economy.On the one hand,the inherent superiority of the registration system allows it to continue to play a important role in China’s trademark law system,On the other hand,accompanied by the registration system produced trademark preemptive registration,trademark waste and the use of registered trademarks of the dominant position of unfair competition and other negative phenomena,which give birth to a series of social negative impact.Due to China’s long-term implementation of the registration system to obtain the system,there is very severe re-registration of light use situation,but the realization of the function of the trademark distinguishing between the source of the commodity is not necessarily related to whether or not it is registered.The previously used unregistered trademarks have been used to form the corresponding market order,which condenses the lawful protection and should be protected by law.The right of prior use of trademark,Introduced to the trademark system,is conducive to ease the judicial practice of absolute adherence to the registration system and consider the use of factors in the two different judgments of the embarrassing situation,is a major positive damage to solve the legal authority of the problem,it provides a new path of fairness and efficiency.But because the provisions are more vague,Coupled with the introduction of the corresponding judicial interpretation,so that the system specifically applicable to the composition of the elements and restrictions,there are still many questions,Good judicial practice,still need theoretical research first,The analysis of applicable rules can help to provide some reference for judicial practice.The full text is divided into four parts,Specifically:The first part mainly discusses the necessity of the right of prior use of trademark,Based on the reality of the existence of numerous unregistered trademarks in use in our market,explain whether a trademark the registration or not does not affect the realization of the trademark function,some unregistered trademarks are known to consumers for their prioruse,formed a certain influence,so that goodwill be accumulated,so the obtain value of the trademark should be owned by the trademark owner.As the expansion of the influence of the formation of a certain market order,this order condenses the legal benefits that are not legally protected by the law through the use of unregistered trademarks.The following is a discussion of the judicial practice in the absence of the right of prior use of trademark,take the typical case as the starting point,to discuss the right of prior use of trademark before the law.The social contradictions in our judicial judgments on the tendencies of the earlier use factors.And then summed up the efforts our country has taken to improve the situation of paying more attention to trademark registration and contempt for trademark use.Finally,analysis trademark use acquisition system and trademark registration system,comprehensive analysis of their respective advantages and disadvantages,comes to the conclusion that the right of prior use of trademark can effectively combine the advantages,it is an effective means to perfect the trademark registration system and balance the interests of the trademark.The second part deals with the constitutive elements of the right of prior use of trademark,the main contents include the time when the mark is used first,the effect factor,specifically,through the critical analysis of already existing results of scholars,with reference to extraterritorial provisions,it is most reasonable to regard the date of application for trademark registration as the "prior" point,this is in line with the trademark application of the apply first principle,but also with the practice of China’s judicial practice.As the realization of the trademark function must rely on the use of trademarks,so the connotation of the identification of the trademark "use" is essential.Specifically,it should be used in commercial activities publicly,and be actual use,The use should be oriented in the field of general consumers in open market,which can make consumers aware and can be distinguished from other trademarks.Through the analysis of the use of continuous use,in view of the ambiguity of the concept of "continuous use",as well as " certain impact",it is not necessarily a sign of continued use,what’s more,the right of prior use of trademark only asks for "certain impact" of the results,for its process is not asked,therefore,it is not necessary to prescribe continuous use requirements in the system of prior use.Followed by a discussion of the elements of the effect of the prior use of the mark,that is,the necessity of "certain influence",and the specific way of identification,Since the prior use of the mark is only a certain influence to show that it has been known to the public and can distinguish it,which is necessary to obtain legalprotection,"certain impact" elements exist is inevitable.For "certain impact" of the way of identification,as the relevant consumer awareness is the core elements of trademark influence judgment,in the "certain impact" of the specific requirements,in order to achieve a real threat to the registered trademark under the premise of a better balance between the two," certain impact" requirements should not be too strict.The third part deals with the limitations of the right of prior use of trademark.First of all,as a way to make up for the defect of trademark registration system,the right of prior use of trademark can effectively protect the stability of the entire trademark system.The right of prior use of trademark does good to the benefits of equitable distribution and adjustment of the benefits of both unregistered and registered trademarks.Due to the lack of rights to acquire the right and the lack of property rights,it should by its own responsibility if its own rights and interests can not be fully protected by the law,according to this to discuss the legitimacy of the restrictions applicable to its provisions.Then on the basis of the judgment of the court,there comes the discussion of restriction on the application of the right of prior use of trademark,specifically include: "the original scope" in the original geographical scope,he original commodity(service)category range,the original commodity(service)scale range,the connotation analysis and the concrete operation mode of "attach appropriate identification".Specifically,about the original geographical area,restrictions on the content should be judged by the geographical impact of the previously used trademark,the geographical area in which it has formed goodwill.In the case of goods(services),to avoid a greater degree of confusion,According to the provisions of the company’s articles of association and the use of trademarks in the field of the target population and other aspects of comprehensive judgment to determine whether beyond the original range.On the scope of the original commodity(service)scale,through the comparative analysis of "patent law" in the field of the right of prior use,It is not appropriate that regard the extent to which the previously used trademark can continue to be used as the limit in practice of the existing scale of production of the goods to which it is attached,because it hinder the use of unregistered trademarks in a reasonable range to continue to survive and expand.The fourth part is about the application of the right of prior use of trademark.Mainly discusses the application of the basic principles and the application of the specific aspects of the recommendations.In view of the lack of specific provisions of the law,it is probably we will be helpless if we are faced with practical disputes,the introduction of legal principles formacro guidance is very necessary.In particular,the three principles of balance of interests and fairness and efficiency,the maintenance of public interest and good faith are more appropriate for macro-level guidance.In addition,about the specific terms of application of the right of prior use of trademark,on the transfer that its inheritance and succession,transfer and permission,as well as the prior user’s subjective goodwill,although it is not yet covered in the existing provisions on the right of first use,but is generally discussed in theory and practice for scholars,and outside there is detailed provision of this.given the importance of these two elements,it is necessary to include them in the discussion.About the subjective goodwill of the prior user,in view of the legitimacy of the basis that only when the object of legal protection meet the subjective goodwill requirement can it be legally protected.Through the combination of judicial decisions on the subjective goodwill requirements,provided a subjective goodwill identified immature proposal.With regard to inheritance and succession,if the trademark itself does not produce new changes that lead to confusion,the inheritance or succession of the right of prior use of trademark does not cause confusion,given the need for a stable trademark order is an indispensable part of a good market order,at the same time,in view of trademarks and goodwill and other intangible property is the merger and other economic activities in the important considerations,trademarks that are protected by the right of prior use of trademark should be allowed to inherit or inherit.On the other hand,from the point of view of ownership,the right is not complete,it is a restricted property,in order to prevent it to cause a fundamental impact to the trademark registration system,the person who obtain the right of prior use of trademark should not be permitted to transfer and license its trademark.