Research On Application Of The Prior Use Of Trademark

Trademark use is the core of the trademark system.Trademark make sence through use.What trademark law protects is not the trademark as a symbol of the logo,but the distinctive function and indicative function it plays,that is,the goodwill condensed behind the trademark.China's Trademark Law adopts the registration acquisition system,which improves efficiency in trademark management,but ignores the protection of used but unregistered trademarks to a certain extent.Article 59 paragraph 3 of the Trademark Law stipulates the right of prior use of trademarks.Trademarks that have already had some influence may continue to be used within the scope of their original use.It is a way to protect unregistered trademarks.Trademarks used in the first place have formed a certain goodwill through the use,resulting in property value,which is necessary to be protected.The right of first use of trademark is a supplement to the system of registered acquisition and can not conflict with it fundamentally.Therefore,the trademark with prior use only obtains the right of defense,but can not obtain the same right attribute as the right of exclusive use of trademark.This is the result of the balance of interests under the principle of fairness.There are many problems in the application of preemptive right of the prior use right of trademark,such as the lack of subjective elements,the redundancy of time elements,the divergence of the necessity of certain influential elements and the ambiguity of other elements' criteria,etc.In order to better apply this clause,it is necessary to clarify the theoretical basis and the character of the right of prior use of trademarks.The theory of goodwill value and the theory of balance of interests constitute the theoretical basis of the right of first use of trademarks,and its right attribute is the right of defense.They determines that the prior use of trademarks should be in good faith subjectively,not for improper purposes.The use of trademarks should be earlier than the registration date of the trademark application,however they need not be earlier than the first use time of the trademark registrant or the prior use of the trademark,and all the prior users should enjoy the same protection.It is necessary to obtain certain influential elements in the prior use,and itsidentification is case-based,which needs to be considered in combination with the relevant audience,geographical scope,industry and other factors.The prior use of trademarks should be based on the actual commercial use,which can establish goodwill links and require the lawful and uninterrupted use of trademarks in the mainland China.Its follow-up use can only be limited to the original service category.At the same time,The prior users can break through the limitation of regional scope appropriately and have the right to expand the scale of production.In the case of possible confusion among consumers,appropriate identification should be based on all consumers.At the same time,thesis put forward optimization suggestions on the current situation of legislation and judicature based on the above analysis.