Research On The System Of The Prior Use Right Of Trademark In China

China's trademark law applies the principle of voluntary registration.The owner of the unregistered trademark has the right to determine whether or not to apply for the registration at his or her will.Only the registered trademarks have the exclusive right.When the unregistered trademark has already been applied for registration by another person,the prior user of the unregistered trademark and the person of the registered trademark will have a conflict of interests.How to effectively resolve the resulting trademark infringement disputes must be considered in the theory and the practice of trademark law.China's Trademark Law stipulates in the third paragraph of Article 59,the prior use right system of trademark,which reflects the maintenance of the good faith management in the market by trademark law.However,due to the principle and abstraction of the clause,there are many problems in judicial application,Cases of trademark infringement disputes are commonplace,and a large amount of national judicial resources are wasted.This article first summarizes the related judicial cases,conducts a classification analysis,then raises the main issues.The basic theory of the prior use right of trademark.The author believes that the nature and value are the theoretical basis for the study of other issues.Only by first determining the nature and value of the prior use right of trademark in order to better discuss its applicable issues.There are many disputes in the theory field about the nature of the prior use right of trademark,and the application of the right to use the trademark is very different in judicial practice.The author demonstrates this from three aspects,and finally comes to the conclusion that it is the right of defense.The constitutive requirements of the prior use right of trademark.The author first discusses the constitutive requirements of the prior use right of trademark,and specifically elaborates the good faith elements,the prior requirements,use requirements,have certain influence factor.According to the controversy in the theory,in conjunction with the relevant provisions of the Foreign Trademark Law,a detailed analysis of how to determine the constitutional elements of the prior use right of trademark should be conducted in practice.The limitation of the application of the prior use right of trademark.The author's research on the limitation of the application focuses on the original scope of use and the addition of appropriate identification.Considering that there are differences between the court's determination of the original scope of use in judicial practice,the author will focus on the original scope of use.The perfection of the prior use right of trademark.Through concrete analysis of the basic theory,constitutive requirements and applicable restrictions of the prior use right of trademark,the author draws lessons from the relevant provisions of the Foreign Trademark Law and puts forward optimization proposals for China's trademark prior use right system,including the following aspects: expliciting the status of trademark prior use rights,clearly stipulating the subjective requirements,improving the identification of prior use,improving the identification that has a certain influence,identifying the scope of the original use,and increasing the provisions on licensing,transfer and business inheritance of the prior use right of trademark.