Research On Institution Of Prior Use Defense In Trademark

Because of the principle of registration doctrine adopted in the acquisition of trademark right in China,the third amendment of the trademark law in China the law of the prior use of unregistered trademarks in the law did not give adequate protection,the theory and practice of the first use of the trademark defense can be established,there is a great controversy,the court on the first use of unregistered trademark infringement cases of thinking and the results of the trial,there is a large difference.The prior use of unregistered trademarks in the judicial protection of the plight of the legislation does not give effective protection.Article 59 th,paragraph 3rd,of the revised trademark law,adopted in August 2013,first established the prior use defense of trademarks,to some extent,it eliminates the long-standing differences in judicial practice,provides a clear legal protection basis for unregistered trademarks,and balances the interests between the registrant and the prior users,and also helps to curb the phenomenon of squatting.Because the system has been established in our country for few years,and the application condition of the law clause is too abstract,lacking the uniform criterion and the problems are gradually highlighted in the application process,and there is a great controversy over the understanding.For example,the 59 th paragraph 3rd of the article,and other relevant provisions of the connection,the provisions of the law is more abstract and fuzzy,there are some more elastic content in the strip,such as: "Prior to use","have a certain impact","identical or approximate"," original scope of Use","attach the appropriate distinction of identification" and so on how to judge,the judicial practice of the application of the dilemma,serious impact on the prior use of the legislative effect of the defense system,this article will combine the specific case It provides an operational opinion for the judicial practice to accurately understand and grasp the system.This article will carry out the analysis from six aspects,the first part,through the introduction of the research background and research significance,literature review,main research methods,put forward research issues,for the following analysis of problems to pave the way.The second part,to the trademark first Use defense system carries on the jurisprudential analysis,elaborates the trademark first Use defense system concept and the nature,discusses the theory cornerstone of this system,and provides the following to the trademark preceding use Defense System research to provide a solid theoretical foundation.In the third part,to the extraterritorial trademark prior to the use of protection provisions to comb and comment,for reference to the use of foreign trademarks prior to the protection of the practice of providing basis.In fourth part,the author interprets the law of the first use defense system of our country trademark,expounds the composing elements of the trademark prior to use,and points out the existing problems.The fifth part,through the analysis of typical judicial cases,the paper discusses the dilemma of the trademark prior to the use of judicial application.The sixth part puts forward the suggestion of perfecting our country trademark prior use defense system.This paper considers that the principle of honesty and credit should be established as the judgment principle of the first use of the trademark,and the subjective elements of the prior use of goodwill should be clarified,finally,the specific criteria for determining the "prior use","having certain influence","identical or approximate",and limiting conditions.