Research On Improvement Of The Regime Of Trademark Prior User Right

The regime of trademark prior user right is applied: before someone submits a trademark registration application,whena prior useradopts an unregisteredtrademark that is identical to or similar with the registered trademark hold by another one on the identical or similar kinds of goods or services,then the registered trademark rights holderallegesthe prior user constitutes trademark infringement.The prior user could defense the registered trademark rights holder according to the regime,if the defense is established,the law entitle the prior user to a right to continue using his former unregistered mark legally.As to the regime of trademark prior user right is a lawful right or an interest,the author think it should be an interest.But the paper here doesn't discuss too much on the conception point and simplified call it Trademark Prior User Right.On May 1st,2014 the new Trademark Law implements Article 59(3)that is just the regime of trademark prior user right.It's the first time that the regime has been established in our country.Previously this article contains two aspects:(1)therequirements of constituting a trademark prior using,(2)if constituted,what limitations do the prior trademark user should obey to continue to use it.Since the regime is very new to our law system,there isneither relevant judicial interpretation for reference,nor any reasonable cases to help us understand this article.Thescholars have different opinions on the regime from time to time,before it was implemented into the law many scholars called for making the interest of trademark prior user legally;then now they mainly focus on the application of the regime.As we know from the specific article in Trademark Law,the content of trademark prior user right could be divided into the following: requirements(1)Having used before the trademark register and also before the trademark application date,(2)the trademark should be used,(3)it has established some popularity;limitations(1)the continuing using should be maintained in the original scope,(2)the registration right holder could ask for proper identification mark.The requirements are not so clear to apply the articleon an explicit criterion,and this effects the trials of cases to affirm a trademark prior use;once a trademark is affirmed as a prior one,how to sure its following use is also a question.Refer to the laws and cases of other countries and areas,the paper endeavors to figure out how to improve the present regime of trademark prior user right.