As for the issue of prior use of trademarks, in real life, Jiaxing trademark registration and trademark squatting behaviors occur one after another, causing huge losses to enterprises and trademark users, and the correct use of trademarks "prior use" The "rights" system can effectively protect the interests of enterprises and trademark users. Below we will discuss the issues related to the “prior use right” in the new Trademark Law.

1. The right to prior use of a trademark is protected by law

Article 32 of the newly revised Trademark Law in 2013 stipulates that applying for trademark registration shall not damage the existing rights of others. Priority rights shall not be used, nor shall unfair means be used to preemptively register a trademark that is already used by others and has certain influence. At the same time, Paragraph 3 of Article 59 clearly stipulates the system of prior use rights of trademarks. The owner of the exclusive right to a registered trademark has no right to prohibit the prior user of an unregistered trademark from continuing to use the trademark within the original scope of use.

2. Four Components of the Right of Prior Use of a Trademark

According to the relevant provisions of the new Trademark Law, we understand that the following conditions must be met in order to exercise the right of prior use of a trademark.

1. The "two first" principle of trademark use

One means that the prior user of the trademark used the trademark earlier than the trademark registrant. Trademark use refers to the use of trademarks on goods, packaging or containers, and commodity transaction documents, or the use of trademarks in advertisements, exhibitions, and other commercial activities to identify the source of goods. The right of prior use of a trademark, as the name suggests, should be used first. According to the general prior use requirements, the time of first use of a previously used trademark shall be based on the time of first use of the trademark, which time shall be advanced before the date of application for trademark registration.

The second one means that the time of use of the trademark by the prior user of the trademark is earlier than the time of prior use by the trademark registrant. According to the understanding of the new law, the prior user of an unregistered trademark must not only meet the first condition above, but also must have used it earlier than the trademark registrant.

2. The first-used trademark is the same as or similar to the later-used trademark, and the goods or services used are the same or similar. If the first-used trademark is not identical or similar to the later-used trademark, or the goods or services used are different or similar, the user will certainly have the right to continue to use the trademark or even apply for the trademark.

3. The previously used trademark must have certain influence. In other words, the prior user has already used the trademark in China and is well known to the relevant public within a certain geographical scope.

4. The prior use must be in good faith. Although in the provisions of the new law, we do not see the literal expression that prior use must be done in good faith, we can understand from the perspective of anti-unfair competition law and civil law principles that the right to prior use of a trademark is based on Prior good faith use shall be one of the inherent requirements of the prior use right of a trademark and shall not be exercised for the purpose of unfair competition.