Article 23, Paragraph 2 of Taiwan Region of my country stipulates: Before others apply, the same or similar Trademark design shall be used in good faith on the same site. or similar goods are not subject to the restrictions of others, but are limited to the goods originally used. According to the provisions of this paragraph, the constituent elements of the prior right to use a trademark are: (1) the fact that the user has already used it before others apply for trademark registration; (2) the user's use must be based on good faith; (3) the user The trademark pattern used is identical or similar to the trademark pattern applied for registration by others, and is used on the same or similar goods.
Article 32 of the "Japanese Trademark Law" stipulates: Before others apply for registration of a trademark, an application for registration of the trademark has been made in Japan without the purpose of unfair competition. If a trademark that is identical or similar to the trademark applied for registration is used on designated goods or services or similar goods or services, and is used as a mark to distinguish goods or services related to one's own business, it is already well-known among consumers by the time another person files an application for trademark registration. This person has the right to continue to use the trademark on the aforementioned goods or services. According to this article, the constituent elements of the prior right to use a trademark are: (1) Before someone else files an application for trademark registration, the same or similar trademark as the trademark applied for registration has been used in Japan on the goods specified in the trademark registration application or similar goods. Trademark; (2) The use is not for the purpose of unfair competition; (3) When another person files an application for registration of the trademark, a trademark that is identical or similar to the trademark has already been used by consumers as a sign of goods related to the business of the prior user. Well-known; (4) The prior user continues to use the trademark on its goods.
Trademark laws in Japan and Taiwan, which belong to the civil law system, emphasize the subjective status of the prior user, that is, the user must use it out of "good faith" or " "It is not for the purpose of unfair competition." The difference between the two is that the Japanese Trademark Law requires that a previously used trademark "serves as a mark to distinguish goods or services related to one's own business by the time another person files an application for trademark registration." Well-known". This article believes that the requirement of prior use of a trademark in Japanese law to be well-known is beneficial to maintaining the authority of the principle of obtaining trademark registration, but it is not conducive to protecting the interests of bona fide prior users. Moreover, if the prior user's trademark is already well-known among consumers when someone else files an application for trademark registration, then the other person's application may be unfair. Therefore, the provisions of Japanese law regarding the well-knownness of previously used trademarks are too strict and should not be adopted.
According to Article 11, Paragraph 3 of the UK Trademark Law: Continuous use of an unregistered trademark in the course of business in a specific territory before others register or use the trademark or otherThe logo does not constitute an infringement of the registered trademark. Unregistered trademarks and other marks herein are protected as "prior rights". However, the law does not provide for "within a specific territory", leaving it to the courts to define it more clearly.
Article 2 of the U.S. Trademark Law stipulates that concurrent registration of trademarks that entitle them to legitimate use in commerce may be permitted. The necessary condition for concurrent registration is that the later applicant's commercial use of its trademark must precede the date when the earlier registered applicant or registrant files a trademark application with the USPTO, otherwise there will be no concurrent registration. If a court with jurisdiction finally decides that more than one person has the right to use the same or similar trademark in commerce, the Director of Patents and Trademarks may grant concurrent registration, and at the same time stipulate the manner and place for each trademark owner to use his or her registered trademark or the use of related goods. Conditions and Restrictions.
The United Kingdom and the United States, which belong to the common law system, do not provide literal provisions on the subjective status of the prior user. The United States trademark law pays more attention to the requirements on the consequences of use. There will be no confusion, misunderstanding or deception.” The US legislation provides the most powerful relief to the prior user. It not only recognizes that the prior user can continue to use the product conditionally, but also can register it concurrently with conditions.
The common feature of the trademark first-use rights systems of the two major legal systems is that the prior user must use it before the prior trademark registrant files a trademark registration application. , the prior user’s right to continue using the goods or services is limited to the original use. This has reference significance for my country's construction of a trademark prior use right system.
2. The definition of prior use rights of trademarks in this article
Based on the above analysis, the author believes that, The right of prior use of a trademark can be defined as follows: before the application date of the registered trademark, a trademark that is identical or similar to the registered trademark has been used in good faith and continuously on the goods or services for which the trademark is registered and approved for use, or on similar goods or services. , the user of the trademark has the right to continue to use the trademark on the original goods or services.
The significance of establishing a trademark prior use right system is mainly reflected in making up for the shortcomings of the first-to-file principle and the registration principle. Specifically, it includes: first, protecting fair competition, balancing the interests of trademark registrants and prior users, and avoiding unfair consequences for prior users. Second, in terms of preventing squatting, the trademark prior use right system gives the prior user the right to continue to use the trademark, without being restricted by the "squatting person"'s registered trademark. At the same time, it will buy time for the prior user of the trademark to initiate improper procedures for deregistration. Because the holder of the prior right to use the trademark has the right to continue to use the original goods or servicesThe use of its trademark does not constitute infringement of the trademark registrant, so it must meet certain constituent elements.
