Understanding And Application Of The Second Half Of The Article 32 Of The "Trademark Law"

Article 32 of "Trademark Law" applies to the provisions of registrant malignity with strict conditions.The requirement of registrant malignity must first satisfy the basic premise that the prior user has actually used the trademark and having some popularity.In the typical case of the "Fish Lord" case,the meaning of "priorl use" and "having some popularity" has aroused great controversy.However,due to the trademark is attached to the goods or services,the trademark owner,according to law,could exclusive use of the trademark,exclude other people registration and other trademark rights in the specific goods or services,whether affected by the nature of the goods or services.This has become a widely debated issue in the intellectual property field.At present,the Trademark Law has not clearly stipulated the specific meaning of the two requirements and there are also many disputes on the specific understanding of this issue in judicial practice.Therefore,to correct understanding the requirement of "prior use" and "having some popularity" applicable to regulate registrant malignity is of great significance.The text of this article is divided into four chapters:The First Chapter :the question put forward.This chapter combines the specific cases of "Fish Lord" and concludes the dispute over the understanding of the the latter half of Article 32 of the "Trademark Law",then,putting forward the main issue that the application process of the requirement of "prior use" and "having some popularity" of the Article 32 of "Trademark Law".The Second Chapter : Definition of "Prior Use".This chapter mainly consists of four parts.The first part summarizes the main viewpoints existing in the intellectual property community on the understanding of the requirement of "prior use",(mainly "the legitimacy of the use").Through the comparative analysis of the above views and points out their controversial differences lies in the different subject of the issue of "lawfulness".The second part explores the meaning of "lawful use" from the legislative intent of trademark law.The third part learns and draws on the provisions of the United States trademark law and reads thelegislative interpretation of the principle of "lawful use".The fourth part is a review of existing mainstream view to introduce that "lawfulness" only refers to using trademark in conformity with trademark law while goods or services in violation of public does not hinder the acquisition and existence of private rights trademark.The Third Chapter :Definition of "having some popularity".This chapter is divided into four parts.The first part sums up the main viewpoints of the present of the requirement of "some popularity" and analyzes the differences in the disputes lies in adopting different standards: one is reputation standard while the other is recognition standard.The second part explores the meaning of "having some popularity" from the legislative intent of trademark law.The third part draws on the relevant provisions of Japan in the same content."popularity" is only referring to "general awareness" of the relevant public,rather than the so-called "good reputation".The fourth part is to refute the viewpoint that holds the reputation standard and illustrate that the popularity of trademark should be understood from the recognition standard.TheFourth Chapter: Conclusion.This chapter mainly summarizes the correct understanding of the requirements of "lawful use" and "having some popularity",based on the theory of the second chapter and the third chapter and analyzes the case of "FishLord",concluding that the "FishLord" trademark which having some popularity could acquire trademark rights and prevent others from improper registration.