The Research On The Conflict Between Trademark Right And Prior Right

China's trademark law has established the principle of protecting the prior rights,but the relevant provisions are not perfect.Whether it is in the legislation,the judicature or the administrative enforcement,in the protection of rights,China is still at the exploratory stage,and the conflict between the right of trademark and the prior right is also common in practice.The intangibles of the object of intellectual property right,the diversity of the elements of the trademark,and similar object right in different subjects are the inner reasons that lead to the conflict of rights,the decentralization of administrative,the lack of information sharing mechanism,and the interest driven of the social market economy,is the external reasons of the right conflict.About the treatment of the rights disputes,in the legislation,on the concept ? scope of the prior rights,and the uncertainty of the principles of handling rights conflict,is responsible for the umpire's different understanding of the concepts and the application of the principles in the process of judgment,which lead to the different judgments in the same case often occur.The lack of relevant standards for the identification of the prior rights,the certification matters and the burden of proof for the right people can not give clear directions to the rights holders in the process of safeguarding rights.And the standard between judicial referee and administrative enforcement is not uniform,which makes the court adjudication and the judges fail to agree,and the effectiveness of administrative preposition procedure can not be maximized.In order to improve the protection of the prior rights,effectively solve the conflict between the right of trademark and prior rights,at the legislative level,we should clear the definition of the prior right,revealing the inner connection between the prior right and the post right,and its own characteristics;combined with the legislative purpose of prior rights,reference to the provisions of the Patent Law,we also should establish the scope of the prior rights protected by the Trademark Law;to improve the conflict processing procedure,we should reference to the civil law,differentiating the "knowing" and "unknowing" of the prior right owners;to protectthe legitimate interests of the goodwill trademark owners,we can establish the obligatory license system in civil proceeding,and establish the merchandising right system in the light of China's legal provisions,to improve the scope of the prior rights protected by the Trademark Law.At the judicial level,we should clarify the specific infringement criteria of trademark infringement on the prior rights,and distinguish the criteria for identifying the prior right in the trademark infringement.Also,we should clarify the principles of handling conflicts and unify the judicial judgment standard.At the administrative level,in order to improve the scope of the administrative review,we should create the information sharing platform;in order to give full play to the utility of the administrative prepositional procedure and establish the credibility of the administrative organs.To give full play to the role of the prepositional procedure of the administration and establish the credibility of the administration,we should unify the administrative law enforcement standard and judicial referee standard.