The principle of "application first" of a trademark comes from the "registration principle" obtained by the exclusive right to use a trademark. Because the exclusive right to use a trademark is based on registration, more than one person often applies for registration when using the same or similar trademark on the same or similar goods. In order to solve this problem, the law stipulates that the exclusive right to use a trademark shall be based on the time when the application is submitted. According to the principle of "application first", even if a trademark has been used for many years, if the trademark user does not apply for trademark registration in time, he will lose the registration opportunity because others apply first, and then lose the right to continue using the trademark.
The principle of "application first" for trademarks is not absolute. In violation of the principles of fairness, justice and good faith, the law does not support the act of maliciously registering another person's trademark. An applicant for trademark registration shall not preempt the registration of a trademark that has been used by others and has certain influence by unfair means. Where a registered trademark violates these provisions, the trademark owner or interested party may request the Trademark Review and Adjudication Board to cancel the registered trademark within five years from the date of trademark registration. For malicious registration, the owner of a well-known trademark is not limited by five years.
Article 31 of the Trademark Law of People's Republic of China (PRC) * * * Where two or more applicants for trademark registration apply for registration with the same or similar trademarks on the same kind of goods or similar goods, they shall make a preliminary examination of the trademark applied earlier and make an announcement; Where an application is filed on the same day, the prior trademark shall be preliminarily examined and announced, and the application of others shall be rejected without announcement.
Article 30 Where a trademark applied for registration does not conform to the relevant provisions of this Law or is identical with or similar to a trademark that has been registered or preliminarily approved by others on the same kind of goods or similar goods, the Trademark Office shall reject the application without making an announcement.
Article 35 Where an objection is raised to a trademark that has been preliminarily examined and announced, the Trademark Office shall listen to the facts and reasons stated by the objector and the objector, and after investigation and verification, make a decision on whether to approve the registration within 12 months from the date of expiration of the announcement, and notify the objector and the objector in writing. There are special circumstances that need to be extended, which can be extended for six months with the approval of the administrative department for industry and commerce of the State Council.
Where the Trademark Office approves the registration, it shall issue a trademark registration certificate and make an announcement. If the objector refuses to accept it, he may, in accordance with the provisions of Articles 44 and 45 of this Law, request the Trademark Review and Adjudication Board to declare the registered trademark invalid.
If the trademark office refuses to register, and the objector refuses to accept it, he may apply to the Trademark Review and Adjudication Board for reexamination within 15 days from the date of receiving the notice. The Trademark Review and Adjudication Board shall make a reexamination decision within 12 months from the date of receiving the application, and notify the objector and the objector in writing. There are special circumstances that need to be extended, which can be extended for six months with the approval of the administrative department for industry and commerce of the State Council. Anyone who refuses to accept the decision of the Trademark Review and Adjudication Board may bring a suit in a people's court within 30 days from the date of receiving the notice. The people's court shall notify the dissenter to participate in the proceedings as a third party.
In the process of reexamination in accordance with the provisions of the preceding paragraph, if the determination of the prior rights involved must be based on the results of another case being tried by the people's court or being handled by the administrative organ, the Trademark Review and Adjudication Board may suspend the examination. After the reasons for suspension are eliminated, the review procedure shall be resumed.