| The third paragraph of Article 59 of the Trademark Law of China prescribes the system of prior use right of trademark.On the premise of protecting the registered trademark holders,if the prior users of unregistered trademarks fulfill certain conditions,they shall be granted the right to continue to use the trademarks within the “original scope of use”.However,the concept of “original scope of use” is hard to define specifically,neither Trademark Law nor interpretations of the relevant judiciary has been interpreted against it,which leads to controversial both in theory and practice.At the same time,with the development and popularization of the Internet,the scope of the use of trademarks has expanded from the real world to the network environment,which has brought more problems to the definition of “original scope of use”.For example,it is difficult to adapt to the needs of the Internet era to take the registration application date as the time point of the “original scope of use”advocated by most scholars.And the special nature of the network,such as virtuality and boundlessness,makes it difficult to determine the boundary of the“original scope of use”,and the role of the limiting factor of the “region of use”has been weakened,which needs to be studied and solved urgently.This paper uses empirical analysis,comparative research,legal hermeneutics and other methods,combined with the new era background of the Internet,through five parts to discuss the system of trademark prior use right and the applicable restriction of “original scope of use”.First of all,this paper expounds the basic concept and constituent elements of the prior use right,and points out that the emergence of the Internet has not changed the value orientation of the system and the criteria for judging the constituent elements.Secondly,this paper analyzes the limiting factors of the “original scope of use”with charts,points out the new problems that may arise in the Internet,and discusses the positive exploration of China’s judicial practice.Finally,this paper puts forward the existing problems of the “original scope of use” in the application of the Internet,and gives a series of improvement suggestions.Firstly,in the rapidly changing Internet era,it is more practical,reasonable and fair to replace “original scope of use” with “existing scope”.Second,the common interests who use trademarks in good faith spawned by the emergence of the Internet should be allowed to enjoy the same right of prior use defense as prior users and protected by the prior use right.Third,when the “region” in the Internet is difficult to determine and its restrictive effect is weakened,the scope of continued use of trademarks can be restricted by strengthening the role of“type of goods or services”,which is not only feasible,but also in line with the needs of the rapid development of the Internet.Fourth,attaching appropriate distinguishing marks as a new way to balance the interests of the exclusive right holders and prior users in the Internet environment can effectively avoid the confusion and misunderstanding between registered trademarks and previously used trademarks.It is hoped that through the discussion of this paper,it can provide a possible reference for the future judicial practice,so as to make China’s prior use right system of trademark play a better role in balancing interests and maintaining fairness. |
