The Insufficiency Of The Existing Legal System For The Protection Of Previously Used Unregistered Trademarks In China

The protection of unregistered trademarks in China's trademark law is stipulated in the thirty-first and forty-first article first of the trademark law.

Among them, the thirty-first rule states that the application for trademark registration shall not prejudice the prior rights of others, nor shall they preemptive registration of other trademarks which have been used and have certain effects by improper means.

The forty-first first paragraph stipulates that a registered trademark has violated the provisions of tenth, eleventh or twelfth of this law, or has obtained registration by deception or other improper means. The Trademark Office shall cancel the registered trademark, and other units or individuals may request the commercial Award Committee to adjudication to cancel the registered trademark.

In December 2005, the "trademark trial standard" promulgated by the General Administration of trademark has made clear in the fifth part that the "registration of other improper means" stipulated in the forty-first article and first paragraph of the Trademark Law refers to the malicious registration behavior based on the purpose of unfair competition and illegal interests.

Such a situation means that except for the provisions of the thirteenth, fifteenth and thirty-first articles of the trademark law, there is sufficient evidence to prove that the trademark registrant is aware that the trademark registrant should be aware of or should be aware of the trademark previously used by others, and that his act violates the principle of honesty and trustworthiness, damages the legitimate rights and interests of others, damages the fair competition market order, and argues that the trademark shall not be approved or revoked.

In this way, the trademark law not only provides for the protection of the unregistered trademarks that have been used and has certain effects in the thirty-first clause, but also stipulates in some forty-first cases that the general unregistered trademarks that are previously used should not be protected by influence.

However, these two articles only aim at the issue of conflict of interest in trademark registration. It does not regulate the registration of trademarks without applying for trademark registration, for example, the use of trademarks already used by others, but does not apply for registration, these two can not be standardized.

In this paper, the use conflict between the first unregistered registered trademark and the unregistered trademark after use is used as the first case of the protection of the unregistered trademark that was first used. The conflict resolution method is analyzed in detail below.

Moreover, these two articles.

It is a provision made from the angle of blocking the acquisition of exclusive right of trademark, whether it is "no approval registration" or "revocation", which negates the legal establishment of exclusive right to trademark, and the existing trademark.

It has not yet made a positive answer to the status of the first used trademark from the perspective of restricting the exclusive right of the trademark, that is, whether the first used trademark has the prior right to use the trademark, and thus against the exclusive right to be registered in the latter registered trademark.

In this regard, China's trademark law does not make specific provisions on trade marks, but there are clear rules on service trademarks.

The fifty-fourth provision of the trademark law enforcement regulation of China stipulates that the service trademarks that are used continuously to July 1, 1993 may continue to be used in the same or similar service trademarks already registered with others in the same or similar services. However, after July 1, 1993, the service trademarks which have been interrupted for more than 3 years shall not be used.

Similarly, the patent law which applies the principle of first application stipulates that the first inventor uses no infringement in second of the ninth and sixty-third first articles.

Judging from the above provisions, China's trademark law system does not intend to protect the rights of the first user of trademark.

Because according to the principle of opposing interpretation in the legal interpretation, since the specific issues have been specified in the patent law, if it is not stipulated in the trademark law, it means that the trademark law does not adopt the similar patent law, which stipulates that the first use shall not be infringed.

The implementation regulations only regulate the service trademarks that have been used continuously until July 1, 1993, which means that trademarks other than those are not subject to similar norms.

However, both the practical and academic circles are calling for the first use right of trademark in the trademark law.

The author regards the issue of the right of first use of trademark as the first third cases of the protection of unregistered trademarks.

Although China's trademark law has made provisions on the reasons why the thirty-first and forty-first first paragraphs have already blocked the registration of previously used unregistered trademarks, however, how the specific application elements need to be further clarified, the author regards this as the second case of the protection of unregistered trademarks that were first used, which is explained in detail below.