Research On The Coexistence System Of Trademarks Based On The Right Of Prior Use

The coexistence of trademarks is widespread in China’s market,which is inevitable and will continue to increase.Article 59 clause 3 of China’s Trademark Law recognizes the coexistence of trademarks based on the prior use of trademarks.Under legal conditions,it is allowed to use trademarks that are the same or similar to others on the same or similar goods.This has created an umbrella for some Chinese time-honored brands and unregistered trademarks with certain influence,and plays an important role in promoting brand construction,maintaining market competition order and promoting high-quality economic development.However,there are still many difficulties to realize the coexistence of trademarks based on the right of prior use of trademarks.The likelihood of confusion theory and the interest balance theory are the common theoretical basis of trademark coexistence system and prior right of trademark system.The likelihood of confusion is the foothold of trademark infringement determination.Trademark coexistence based on prior right allows a certain degree of confusion,and demarcates the boundary for trademark coexistence and prior right of trademark.The interest balance provides guidance for this coexistence phenomenon: one is to achieve a balance between fairness and efficiency by combining the registration and use value of trademarks,the other is to achieve the balance of interests among the prior user and registrant,consumers and public interests.From the perspective of balance of interests and consumer confusion,there are some problems in the relevant system design,such as difficulty in identifying prior right of trademark and disharmony of legal system.In judicial practice,there is an imbalance in the protection of the rights of prior users,the abuse of registered trademark rights and the neglect of consumer interest protection.This unreasonable distribution of interests leads to the waste of social intangible assets,the increase of social costs and the confusion of market order.In this regard,the prior trademark and the later registered trademark have been unable to coexist harmoniously.Combined with the system design of trademark coexistence based on the right of prior use of trademarks in the United States,Britain and Germany,these countries have given the prior user of trademarks a certain degree of exclusive right,take the possibility of confusion as the identification element of trademark coexistence and trademark infringement,and balance the value of use and registration of trademarks through legislation.Referring to the judicial cases involving trademark coexistence in the United States and the Lanham act,the system design of parallel application of anti-counterfeiting law and Trademark Law in the United Kingdom,and the internalization of trademark prior right system and trademark coexistence system in Germany,it is suggested that localize the institutional advantages of these countries,and extract the protection ideas and system improvement direction of trademark coexistence based on trademark prior right in China.First,take the possibility of trademark confusion as the bottom line and strengthen the application of the judgment of the likelihood of confusion in judicial practice.Second,use the concept and spirit of trademark coexistence to reshape the terms of the prior right of trademarks.Finally,supplemented by the parallel application of the anti unfair competition law,and give the prior user the exclusive right.