Research On The Prior Use Right Of Unregistered Trademark

Under the background of economic globalization,the value of trademark in the market becomes more and more prominent.The Trademark Law of our country adopts the doctrine of registration,and tends to protect the registered trademark strongly in the trademark market,but the protection of the unregistered trademark is relatively weak.It leads to the unbalanced and uncoordinated interest relationship between the exclusive owner of the registered trademark and the person who previously used the unregistered trademark.In 2013,China revised the Trademark Law and introduced the prior use right system of unregistered trademarks in the third paragraph of Article 59.However,due to the vague legislative language,there is a large elastic space for the constitution of the prior use right of unregistered trademark and the judgment of legal effect.This is obviously not conducive to the prior use rights system of unregistered trademark to play a real role.This paper mainly consists of four parts:introduction,the theoretical basis of the prior use right of unregistered trademark,the comparative law research and the interpretation of the provisions of the prior use right of unregistered trademark in the Trademark Law of our country.In the first part,the author introduces the background of the topic selection,summarizes the different opinions of adjudication in the typical cases in the last five years in order to reflect the confusion in the judicial practice of our country,and then leads to the theme of this paper,what is the legal effect of the constitution of the system of prior use right of unregistered trademarks created in the third paragraph of Article 59 of the Chinese Trademark Law?Then it refines the viewpoint of Chinese academic circles,and explains the main work and innovation of this paper.In the second part,starting from the origin of trademark protection,this paper examines the trademark protection theory based on maintaining the function of trademark information dissemination in common law cases,and sorts out the history of the development of trademark protection theory.It is clear that the essence of trademark law protection is the protection of goodwill under the concept of trademark property.Then,the origin and function of the system of trademark registration are investigated.Finally,the legal nature of the unregistered trademark,the legal nature of the prior use right of the unregistered trademark and the legal nature of the trademark registration act are analyzed,and then the legitimacy of the system of the unregistered trademark prior use right and its necessary restrictions are demonstrated.In the third part,this article takes the United States and Japan as the representative to investigate the foreign regulations on the system of prior use of unregistered trademarks.In the study of American Trademark Law,the American regulations on the use of trademarks and the constitution of preemptive rights of unregistered trademarks are emphatically analyzed.In the study of Japanese Trademark Law,the provisions of the Japanese Trademark Law on the use of trademarks,the subjective state of the user and the legal effect of the users in the constitution of the prior use right of unregistered trademarks are emphatically reviewed.In the fourth part,based on the theoretical preparation and comparative law research mentioned above,this paper fully interprets and refines the constituent elements and legal effect of the prior use right of unregistered trademark in the Trademark Law of our country.On the basis of critical inheritance of previous views,the author gives his own views.The prior use right of unregistered trademark needs to be used before the registration of registered trademark,and the continuous use is not strictly required,but it needs to have some influence.The degree of public awareness of the trademark is the best factor to influence.In the interpretation of the validity of the prior use right of unregistered trademark,the original scope should be understood as the original geographical scope,and the additional appropriate distinction mark only needs to have significance in the original scope of use.Unregistered trademark prior use right cannot,in principle,be transferred or permitted to be used by others unless they are transferred together with the enterprise and the business.