Dissertation > Political, legal > Legal > Chinese law > China and France > Intellectual property rights > Trademark law

Research on Protection of Trademark Prior Use Behavior

Author LiYanHong
Tutor HeMin
School East China University of Political Science
Course Civil and Commercial Law
Keywords Prior Use Unregistered Trademark Continue to Use Right of Cancellation
CLC D923.43
Type Master's thesis
Year 2013
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In China, trademark right is obtained only one way: registered principle. So,there are more and more conflicts between the prior use of unregistered trademark andtrademark recently. Over viewing of the world trademark legislation, most countriesset different ways to protect the Trademark Prior Use Behavior. In China, as to protecttrademark prior user, there is a great missing, though the attitude of judicial istrending to the same.2012Trademark Law Amendment (Draft) protects “Prior Use”by prohibiting the malicious cybersquatting in business dealings. But it doesn’tregulate the legal effect of “Prior Use”. The paper is main to analyze how toimprove the system of Prior Use in China.First, the Prior Use Conflict can be defined that the conflict happens between ofunregistered trademark prior user and registered trademark user. The paper analyzesthe behavior mainly. Otherwise, this chapter focuses on legislation system ofprotection of Prior Use.Second, this chapter analyzes the root cause of conflict between unregisteredtrademark prior user and registered trademark user, Registered Principle. Then itintroduces the Locke’s Labor Theory and maintenance of social order. So facing thejudicial and legislative problems, legislators need to respect the Use in trademark,protect the goodwill of trademark, maintain the market order.Third, this chapter analyzes the key difficult of Prior Use, the main part of this paper. The difficult is set into three parts, such as time, use and object. In order toillustrate the three aspects above, author references the foreign legislative act,as wellas our existing judicial trail content.Last, the author sets some ideas of how to improve the system of Prior Use inChina. This chapter analyzes the nature of Prior Use firstly, than points out thelegislation mode of Protection of Prior Use, Prior Use can against the trademarkinfringement legally. After that,author introduction the contents of Prior Use. Finally,the Prior Use should be protected by procedural rights and substantive rights.

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