| Article 59(3)of the "Trademark Law" provides that prior use of a trademark by a user has "the certain influence" and may claim that a trademark precedes the use of a defense to restrict the trademark holder's exclusive right to use the trademark.However,the "Trademark Law" does not specify how " the certain influence " should be understood and applied.Not only did the prior users have no way of anticipating and judging whether their use of trademarks had “the certain influence”,and the court's determination of “the certain influence” also had differences.On the one hand,it seriously affected the consistency of legal application and the credibility and credibility of judicial decisions.On the other hand,it is impossible to achieve the legal and social effects expected of the system of using a counterfeit defense in the creation of additional trademarks,and to the detriment of the interests of the trademark's prior users and trademark registrants.In order to solve the problem of " the certain influence " in the judicial practice,this article starts with the legislative purpose of using the defense to increase the use of the trademark,and uses a systematic legal interpretation method to discuss the understanding and applicable problems of "certain impact" in order to be able to Judicial practice provides some useful ideas and suggestions.The content of this article is divided into four parts:The first part introduces the case.Briefly introduce the circumstances and the honors that the parties of the case used to use "Cai Die Xuan".The three main dispute points of the summary cases are whether the respondent's use of the font size and logos infringes the applicant's trademark right,whether it constitutes prior use and whether it has the certain influence.At the same time,it is concluded that each trial court considers that the respondent's behavior constitutes an infringement,but the Supreme People's Court as a retrial court adopts different opinions on whether it constitutes prior use and whether it has the certain influence,especially for the size of the respondent's operations.Whether or not sales can be identified as having the certain influence has resulted in a negative conclusion.The second part analyzes the effective judgement documents of China's judicial practice involving “the certain influence” and concludes that there are problems in the court's determination as to whether it has had an impact on the legal basis,the understanding and application of the law,and the examination of the evidence.The specific manifestations are the lack of recognition of “the certain influence”,the inconsistency of the legal provisions on which they are based,the inconsistency of the identified factors and their standards,the time when the misunderstandings have been affected,and the evidence that the errors have been used to prove that they have been affected.At the same time,the reason why the problem arises is that the existing laws and regulations have insufficient provisions for certain influences and there are no specific criteria for recognition.In addition,based on the judgment of the court in adjudicating cases,the court also found it difficult to determine whether the trademark infringement involved in trademark infringement was judged by the use of the trademark or whether it was easy to cause confusion.This made it more difficult to identify “the certain influence”.The third part firstly compares and analyzes the protection of common and influential prior use of trademarks,and considers that the essence of both is the protection of unregistered trademarks.The difference lies in the protection conditions.That is,for the protection of the former,it may face obstacles such as the high cost of ensuring rights and the inability to assert rights.The latter's protection is to limit the protection of unregistered trademarks and emphasize the market impact of unregistered trademarks.At the same time,in conjunction with the increase in " the certain influence t" of the "Trademark Law" revision,the need for " the certain influence " is reiterated.Secondly,it analyzes the "Trademark Law" provisions concerning the protection of prior rights and the prohibition of malicious squatting and Article 5 of the Anti-Unfair Competition Act of 1993 and the current "Anti-Unfair Competition Law," Article 6 of the "Reputable Goods" and The connection and difference of " the certain influence " means that " the certain influence " should be interpreted in the same way,but the standard of recognition must be strictly controlled.Furthermore,it is pointed out that although Article 59(3)of the "Trademark Law" does not explicitly provide that prior users must claim that the prior use of the defense must meet subjective good faith and continuous use requirements,Subjective goodwill and continuous use should be considered as factors that must be taken into account when determining “the certain influence”.Finally,based on the essence of the trademark system,it is believed that in the case of infringement of trademark rights,the court's judgment as to whether or not it constitutes the possibility of trademark use and confusion will hinder whether or not " the certain influence " needs to be identified and whether it can arise.The fourth part first emphasizes that returning to the purpose of legislation and returning to the market is a viable way of thinking that it is difficult to judge whether it has a certain impact,and at the same time points out that the court must conduct strict evidence review on the materials of prior use of the trademark.Second,because " the certain influence " is a concept of uncertainty,it needs to be combined with specific cases.The principle of good faith and balance of interests should be used by judges in exercising discretion.Finally,by combining the viewpoints adopted by the court in the determination of the relevant public,certain regions,awareness level,and time factors in judicial practice,the identified factors and their criteria for “the certain influence” are clarified and refined. |
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