Research On Component Of Original Scope Of Use Of The Defense Rule Of Prior Use Of Trademark

Our country takes the trademark registration system,the registered trademark enjoys monopoly right and the right to prohibit others from using the same or similar trademark on the same or similar goods or services.But the life of trademark is to use,trademark can create and play value only in using.In practice,there are a large number of unregistered trademarks,has been put into use in the market before application for registration of registered trademark which makes it necessary to protect these unregistered trademarks.Based on this,the revised trademark law in2013 established the prior use defense rule in third paragraph of Article 59.However,there is no detailed explanation for the requirement of original scope of use of prior use defense,which results that courts make different understandings of the nature,standard,and factors of original scope of use in the application of prior use defense rule.And this makes uncertainty about whether the prior use of defense is established or not.It is very important for us to clarify the applicable rules of the original scope of use,which will play a key role in balancing the interests of the prior user of unregistered trademarks,the registered trademark owner and the consumer,and maintaining the order of trademark use.And this is the purpose and significance of this paper.The paper consists of four parts.In the First Chapter,through the empirical statistics and analysis of the cases,itis found that there are several defects in the process of courts’ application of the original use scope in the prior use of the defense rules.It concludes that,there is much avoidance of the interpretation of the original scope of use in the court’s judgment,the criteria for the definition of the original scope of use are not uniform,and the ascription of the burden of proof of the original scope of use is different in the different judgments.In the Second Chapter,through elaboration of the development of the prior use defense rule,the components of the rules of the prior use defense and the logical relationship between the various elements in the application of the prior use defense rule,clarifying the status of the original scope of use in the prior use defense rule.Making it clear that original scope of use is the necessary conditional and consequent factor in the prior use defense rule,the burden of proof of the original scope of use belongs to the prior user of unregistered trademark.In the Third Chapter,there is analysis of comparative law.In Patent Law,the original scope of patent use is explained as the original scale of production.But it is unreasonable to explain the original scope of use of trademark as original scale of production.However,other limit factors of original scope of patent use could be compared to explain the scope of original use of trademark.Japan,Korea,and Taiwan take the trademark registration system as same as our country,and in the Trademark Law of these countries and states,original scope of use of trademark is the to use on the same goods or service.This is worth learning,but is not enough.The geographical range also needs to be limited.In The United States of America,the trademark right is formed from use,but there has been formed concurrent use of trademark in case law to limit the geographical range of monopoly right of prior using trademark.And how to test the geographical range of monopoly right of prior using trademark in the US is worth learning to test the geographical range of defense right of prior using registered trademark in our prior use of trademark defense rule.In the Forth Chapter,through interest analysis,making it clear that the standard of defining the scope of the original use is to maintain the balance of interests between the registered trademark owner,the prior user of the trademark and theconsumers.And then there analyzes how to test latter use of unregistered trademark whether belongs to the original scope of use under concrete factors such as subjectivity,legal subject,trademark,region,network platform and methods of use.