The Research On The Legal Protection Of The Priority Right Of Trademark

At present,there are three kinds of ways to get the trademark right in the all countries' current trademark law: registration acquisition,using acquisition and the principle of mixed.Our trademark is obtained by registration,and is the principle of voluntary registration,which caused a large number of unregistered trademarks in the market circulation.Although those trademarks do not have the exclusive right,the using of the trademark has also accumulated a lot of money and labor.If one day those using right are handed over to the trademark owner,this behaviors obviously do not meet the principle of fairness in civil activities.Before the trademark law is revised,unregistered well-known trademarks can just be protected by law,while the protection of the rights of other unregistered trademarks is in a vacuum.In 2013,the trademark law was formally established in the process of revision,which makes the rights of the former users of unregistered trademarks get better protected.However,there is a lot of ambiguity in relevant provisions of the legislation.For example,lack of discussing the corresponding standard specification for the problems,which greatly affected the use of the system in practice,and is difficult to play its role in making up the registration principle.this paper study the insufficiency of current law protection by analyzing the status quo of the protection of priority right of trademark,and find out feasible protection suggestions.The protection of priority right of trademark in china is discussed in first part of the paper.Firstly,I defined priority right of trademark based concept and nature.Secondly,I analysis the content of priority right of trademark in China,including the positive right and negative right.Thirdly,I discuss the scope of the protection of priority right of trademark in our country,excluding the situation that does not belong to the protection of priority right of trademark,in order to better determine the boundaries of the right to use the trademark.The limitation and blind area of legal protection priority right of trademark is discussed in the second part of the paper.The restrictions of priority right of trademark mainly include the limitation of the exercise mode,the limitation of the scope of use and the limitation of the trademark popularity.Unclear limit standard lead to the shortage of priority right of trademark in the practical application.The paper focuses on analyze the lack of the legal protection on priority right of trademark in China.The "prior use" criteria,first with the lack of brand awareness human subjective state,standards and identifies differences are not clear,original scope insufficient provisions will affect the actual application of priority right of trademark.The legal protection of priority right of trademark abroad is discussed in the third part of the paper in order to improve the system of trademark right of use in china.For the first use of trademark legislation extraterritorial rights in law,The law as a division of legislative provisions respectively in common law countries and civil law countries and regions to make comments on the first use of trademark rights,in combined with the analysis of different countries after some enlightenment to our country combined with the analysis of different countries after some enlightenment to our country.Suggestions on perfecting the legal protection of the prior use right of trademark in China is discussed in the forth part of the paper.The paper firstly analysis the elements of the shortcomings of priority right of trademark.Put forward clearly on the "prior use" definition,clear visibility of the objective judgment standard of trademark and trademark prior use right,and further clarify the connotation of original scope,and suggests that enhance the regulation of subjective standard about prior user of trademark for the lack of legislation.For the specific recommendations of the key analysis,we hope to be useful for priority right of trademark system.