Defense Right Of Prior Use Of Trade Mark

The Trademark Law amended for the third time in 2013 regulates the defense of prior use of trademark.Item 3 of article 59 regulates that " Before the trademark registrant applies for trademark registration,if another person has used the trademark that is similar with the registered trademark on the same or similar commodity and that has certain influence,the exclusive right holder of the registered trademark has no right to prohibit the user from continuing to use the trademark within the original application scope,but can require the user to add rational distinctive signs on the trademark".The system provides the legislative authority for a prior user to defense the trademark infringement,effectively balances the interests between the prior user and the trademark registrants.In judicial practice,there are few cases invoking the regulation about defense of prior use of trademark and but it's very controversial.In the essay,the analysis and discussion of this system are conducted from the aspect of "Qi Hang" trademark infringement cases,and the essay tries to respond to some hot issues in judicial practice of the defense of prior use of trademark.The fist part of the essay puts forward the related questions.The simple review of the typical "Qi Hang" case is carried out and the controversial focus of the case is summarized.In the cases sorting part,50 typical cases are found by the case searching software,and the hot issues highlighted in the judicial application are briefly sorted out.The second part is about the theoretical basis of the defense of prior use of trademark.It clarifies its significance in trademark law from the perspective of system concept,system nature and system value.The third part mainly focuses on the application conditions of the defense of prior use of trademark,that is,using in the first place and having certain influence.In this part,large amount of judicial cases are quoted to support the proposed opinions.Firstly,it affirms the defense premise is that the trademark application behavior shall exist.Secondly,the comparative analysis about the time elements of "two precedence" and the judgment standard of "have certain influence" is conducted.Finally,the "sustainability" and "subjective goodwill" elements are discussed.The fourth part discusses the restrictive elements of the defense of prior use of trademark,that is,to use and add appropriate distinctive marks in the original scope.In this part,theconnotation and extension of restrictive elements are discussed by sorting related cases into related types and comparing them with corresponding foreign regulations.The fifth part proposes the complete perfection about the defense of prior use of trademark.The optimization methods with certain principles and details are put forward based on the analysis of the constituent element related cases.The essay suggests to treat good faith,interests balance,fairness and efficiency as the principles of this system,and to complete the system detail elements based by means of the guiding cases and judicial interpretations.