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New Trademark Law: Analysis Of Trademark First Use Right System

2013/11/22 23:03:00 31

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Trademark Law First Use Right Wang Laoji JDB

because our country implements the principle of voluntary registration, and theoretically recognizes the legality of unregistered trademarks, in the real economic life, there are two different trademark forms: registered trademarks and unregistered trademarks. For an unregistered trademark, it can only be protected under certain circumstances. It is mainly reflected in the thirteenth articles of < < a href= > http://www.91se91.com/news/index_q.asp > > < /a > > about the protection of unregistered well-known trademarks, Fifteenth prohibition against agents and representatives, and thirty-first prohibition against malicious registration. These Provisions have played a certain role in the protection of unregistered trademarks, to a certain extent, to suppress and combat the increasing "rush taking" behavior. 
 however, we also see that in recent years, violations of the legitimate rights and interests of unregistered trademark owners are still repeated. Many spillovers do not have obvious improper means. Some may be unaware of the fact that unregistered trademarks have been used and have certain effects. However, some malicious sentries apply for trademark registration through shell companies in order to evade the law. These problems aggravate the grim situation of unregistered trademarks being counterfeited and snatch, and the users of unregistered trademarks find it difficult to stop the application of trademark application by post trademark applicants through normal legal channels. Once the successful registration of the trademark applicant is successful, because the understanding is different, and some parts of the place carry out the absolute registered trademark protection system, the unregistered trademark user will immediately be faced with the legal risks of the stop and damage compensation caused by trademark infringement. This kind of risk is obviously unfair to the users of the unregistered trademarks that have been used before and have a certain effect, and highlights the lack of protection for the prior owners of trademark in China. 
 therefore, in view of the prominent problems in the current society, it is particularly urgent and important to set up the prior right to use the trademark in the new trademark law. The new trademark law stipulates that the prior use right of trademark is conditionally protected. It embodies the principle of maintaining the principle of honesty and credibility and safeguarding fairness and rationality in China's trademark law system. Then, how do we correctly understand the connotation of the prior right to use the trademark in the new trademark law, what are the conditions for the application of the prior right to trademark, and how to exercise the prior right to use the trademark? 
 legal understanding .
 (1) the concept of prior use of trademark /p >
< > the fifty-ninth article and third paragraph of the new trademark law clearly stipulate the system of prior use of trademark. According to the relevant provisions, the prior right to use a trademark means that before the trademark registrant applies for a registered trademark, the prior user of the unregistered trademark has used the same or similar or somewhat affected trademark in the same commodity or similar commodity before the trademark registrant. Under such circumstances, the prior user of the unregistered trademark has the right to continue to use the trademark. The exclusive right holder of the registered trademark has no right to prohibit the original user of the unregistered trademark from continuing to use the trademark in the original use scope, but it may require the user of the unregistered trademark to attach an appropriate difference mark. It can be seen that the "prior right to use trademark" is an exception to the principle of trademark registration. The purpose of its establishment is to protect the trademark that has been recognized because it has actually been used before, and to balance the conflict of interests between the trademark registrant and the prior trademark user, so as to protect the fair competition market order. 
 (two) the constitutive requirements of the prior right of trademark 
 from the foregoing concept, we can see that the prior right to use the trademark is different from the trademark right. It is only a kind of defense right, and it is a right to resist the trademark right after registration, so that it can continue to use the trademark in the original scope of use. To exercise this right, the author believes that according to the provisions of the new trademark law, the following constitutive requirements should be satisfied. 
 1. before the trademark registrant applies for trademark registration, the user of the unregistered trademark has already been used first. {page_break} /p >
 < trademark > a href= "http://www.91se91.com/news/index_s.asp > > prior usage right < /a >, as the name suggests, we should first use it. According to the requirement of general prior use, the time for the first commercial use of the prior trademark shall first be used, and the time should be earlier than the application date of the registered trademark. If later than the application date of the registered trademark, the prior use right will not exist. 
 2. the prior use of the unregistered trademark shall precede the trademark registrant. .
 according to the provisions of the new law, the prior user of an unregistered trademark should not be used only earlier than the application date of the registered trademark, but also earlier than the first commercial use time of the trademark registrant. That is to say, if the application date of the registered trademark is January 1, 2015, and the earliest use time of the trademark registrant is January 1, 2014, if the user of the unregistered trademark wants to exercise the prior right to use the trademark against the trademark right, it will need to prove that it has already been used before January 1, 2014 instead of January 1, 2015. 
 3. the trademark previously used is the same or similar as that of a registered trademark, and is identical or similar in the use of goods or services. .
 there is no doubt that the prior right to exercise the trademark shall be based on the same or similar trademark, the same or similar commodity or service as the basic condition. Because if the trademark previously used does not constitute the same or approximate trademark after the registration, or if the goods or services are not the same or similar, then the unregistered trademark user has no right to conflict with the registered trademark registrant, so the two parties should be able to get along peacefully. 
 4. the trademark used before must have certain influence. .
 the so-called use first and have certain effect is that the prior user has already used a trademark in China and is aware of the relevant public within a certain area. If the prior user can only prove that it has been used before the date of registration of the registered trademark and before the trademark registrant first used the trademark, it can not prove that the trademark has already had a certain effect, the prior user can not enjoy the prior right to use the trademark, nor can he continue to use the trademark. The reason for the requirement is that the basis of the prior right to use the trademark is generated by the prior use and has a certain effect. After that, the identification effect of the trademark is generated. If the prior use is not protected, it is obviously unfair to the prior user. Its existence is a supplement to the trademark registration system. If we only require the prior use of the trademark without prior effect, we will not be able to protect the interests of the registered registrants, thereby shaking the established "a href=" http://www.91se91.com/pioneer/ "trademark registration system < /a >. 
 5. must be used in good faith. .
 in order to clarify whether goodwill is a necessary constituent element, we can first look at the relevant provisions of other countries and regions. Japan and Taiwan of China belong to the continental law system. They define the condition of "good faith" as the prior right to use the trademark in the form of statute law, while the British and the United States belong to the common law system. The Trademark Law of the United States pays more attention to the consequences of "no confusion, misidentification or deception". From these Provisions, we can see that we should make certain demands on the subjective aspects of the former users. Although it is not seen from the provisions of the new law that the prior use must be written in good faith, the author believes that the generation of the prior right of trademark is based on the prior good faith use. Goodwill should belong to one of the intrinsic requirements of the prior right to use the trademark. It is hoped that the relevant requirements of "good will" can be reflected in the implementing regulations and relevant judicial interpretations in line with the new law. 
 (three) the exercise of the prior right to use the trademark 
 according to the provisions of the new trademark law, if the above-mentioned constitutive requirements are met, the exclusive right holder of a registered trademark shall not have the right to prohibit the user from continuing to use the trademark in the original use scope, but may require additional appropriate identification marks. Specifically, the following requirements should be paid attention to when exercising the prior right to use the trademark. 
 1. continues to be used in the original use. .
< > how to understand the original use scope. I think it involves three aspects. The first area is geographical area. Since the registered trademark has been registered, in order to take into account the interests of both sides, the use of the prior trademark user should be limited to the original use area of the trademark, and it is not allowed to expand the area of use arbitrarily. For the understanding of the use of the region, we should adhere to the "certain influence" as the standard. Only when the prior use of the "influential" area, the prior trademark user can enjoy the prior right to use the trademark. Of course, due to the rapid development of e-commerce, how to determine the geographical scope of sales mode, such as Taobao and Alibaba, is still clear in judicial practice. The second aspect is the scope of trademark. The prior trademark user shall only have the prior right to use the trademark previously used, and prohibit it from changing the trademark without authorization. If the prior trademark user changes the unregistered trademark he previously used in order to distinguish himself from the latter registered trademark, this situation should be allowed. The third aspect is the scope of goods or services. The scope of the trademark used by the prior trademark user shall be limited to the goods or services that he first used, and shall not be extended to other similar commodities or services without authorization. 
 2., the trademark registrant can ask the first trademark user to add the appropriate difference mark. .
 If a trademark registrant thinks that the trademark used by the former user is likely to cause confusion or misidentification to the source of the goods or services, the prior trademark user may request the appropriate trademark to be used when using the unregistered trademark. From the legal point of view, this is to give the trademark registrant a right to claim the prior right to use the trademark. The prior trademark user should attach an appropriate logo after the request of the trademark registrant, so as to facilitate the identification and identification of the difference between the two parties. If the prior trademark user can not add an appropriate identification mark, he or she shall not enjoy the prior right to use the trademark and shall not continue to use the trademark. 
, if the trademark registrant does not exercise this claim, should the prior user undertake the corresponding obligation to prevent confusion? I believe that the principle of fairness is one of the basic principles of China's civil law, and the existence of the prior right to use the trademark should not be a violation of the registered trademark right. The way of exercising the right of use must be restricted. Only in this way can the legitimate interests of the prior user and the trademark registrant be balanced. Therefore, in order to protect the interests of the trademark registrants and ordinary consumers, even if the trademark registrants do not exercise the right of claim, the prior trademark user should be given the initiative to prevent confusion.