Research On The Defense Of Prior Use In Trademark

The defense system of the prior use in trademark is the newly added system of the Trademark Law of the People's Republic of China,which was revised in 2013.To a certain extent,the establishment of the system has partly compensated the drawbacks of the trademark registration system in China,which is conducive to protecting the rights of the prior user whose trademark has a certain impact on the market but has not been registered.It has made much progress,but the current legal provisions are very abstract and limited not only in theoretical but also in judicial applications.This paper firstly analyzes the background and legal attribution of the system,then analyzes the application status of the system and the problems in the constituent elements and the follow-up using restriction elements.Finally,Combining with the experience of other developed countries and China's Taiwan region,the author puts forward the corresponding proposals for improvements.The first part of this article is based on the establishment background of the trademark defense system and its basic theory.Firstly,it observes and studies the background of the acquisition of trademark rights and the use of the trademark defense system,introduces the development of the mode of obtaining trademark rights and analyzes the merits and demerits of both.Secondly,it analyzes the law of the trademark attribution by comparing the different viewpoints of different experts and scholars in the country.It is concluded that the trademark is used in the negative sense of the right of defense,not in the right parallel to the trademark right.It can be against the registered trademark right of trademark infringement charges.The purpose of establishing the system is to make up for the drawbacks of the registration mode of the trademark right and to balance the interests of the former user and right holder of a registered trademark in order to maintain the existing social order.The second part of this paper analyzes the application status and defects of this system.From the aspects of subject,object,time and trademark use,the article describes the application of the system elements with some typical cases to analysis of the status of China's judicial practice and the defects of the system in the presence of elements and restricted elements,such as the lack of provisions on the prior user's subjective state,no clear standards about "having a certain influence",the lack of specific definition of "scope" used in the original,no specified way to add a distinctive mark,and the lack of prior use right transfer in the regulation of defense.The third part of this article is to put forward a few suggestions correspondingly based on the shortcomings and problems above.By drawing on the advanced experience of Japan and Taiwan,we can add new judicial interpretations or improve the system by revising the Regulations on the Implementation of the Trademark Law,and make the constituent elements and restrictions clearer to make it better in judicial application.Due to the limited level of the author's research,there are some shortcomings in the study of the system,some of which are not mentioned or not found need to be further studied by future scholars.In addition,the trademark prior use defense system is a subject of great practical significance,which needs continuous development and improvement in judicial practice.