Abstract: The right to use trademarks is not something we can use at will after registration, because some trademarks may be similar or similar to other trademarks after registration, and you cannot use them under certain circumstances. So, under what conditions does one have the priority to use a trademark? What is the priority right to use a trademark and what are the conditions under which we have the right to use a trademark first?

The right to use a trademark is not something we can use at will after registration, because some trademarks may be similar or similar to other trademarks after registration. You cannot use it under the same circumstances. Therefore, the conditions under which you have priority to use a trademark mainly include the following points.

1. The fact that the trademark has been used before the application date of someone else’s registered trademark

This is a requirement for the user’s usage time. If this condition is not met, the trademark will be used. Without "prior use", there is no prior use right, which can be used as a defense for trademark infringement. It should be noted that the use is not limited to the use by the existing user. If there has been a business succession relationship, the use by the existing user as the successor can certainly be used as the use under these conditions. The successor's previous use shall be deemed to be the existing user's use. In other words, the time of use of an earlier-used trademark shall be based on the time of first commercial use of the trademark.

2. The previously used trademark is identical or similar to the registered trademark, and the goods or services used are the same or similar

Under normal circumstances, if the previously used trademark is the same as the registered trademark, If the trademark image is not identical or similar, or the goods used are not identical or similar goods, the user has the right to continue to use or even apply for registration of the trademark. If the previously used trademark and the registered trademark constitute similar trademarks used on the same or similar goods, in accordance with the general provisions of my country's Trademark Law on the principle of first application and registration, the unregistered trademark shall not be continued to be used, otherwise it will constitute a breach of trust. Infringement of registered trademark rights. However, the law should maintain integrity and should not prohibit or sanction fair use. Therefore, it is necessary to create an exception under the above principles, that is, the right to prior use of a trademark.

3. The prior user must continue to use the trademark on its goods

The so-called continuous use means that the prior user uses the trademark continuously and without interruption on its goods. . If the prior user has used the trademark before the filing date of the trademark registered by others, but discontinues the use without justifiable reasons, he shall not continue to use the trademark. The reasons are: first, the prior use right of a trademark is an exception to the registration principle to protect the interests of the prior user. If the prior user's use has been interrupted, he no longer enjoys any interest in the trademark and has no protection. necessary. Secondly, if there is only a fact of use, the prior user can still use it again after registering another's trademark, which will fundamentally shake the trademark registration system and be detrimental to protecting the interests of trademark registrants. Third, allowing re-use after interruption of use is not conducive to maintaining normal and fair competition and safeguarding the interests of consumers. The so-called legitimate reasons refer to interruption of use that is not caused by the user's subjective reasons. If there is a legitimate reason to interrupt the use, it will not be deemed to be a lack of continuous use. If the goods used for the previously used trademark are seasonal, the use of the trademark will be suspended.

4. Prior use must be in good faith

Good faith in civil law usually refers to ignorance through no fault of one's own. Japan’s old Trademark Law also stipulates that the prior user must be in good faith. Jurisprudence and general views understand this as “without malicious intent to engage in unfair competition.” Japan’s current Trademark Law adopts this view and includes legislative terms. The choice was made to replace “good faith” with “not for the purpose of unfair competition”. British jurisprudence holds that good faith means that the defendant's behavior does not have any intention to deceive, nor does it have any intention to borrow the good reputation that others have achieved. Since trademark registration is voluntary, others may have actually used the trademark before filing an application for trademark registration. Therefore, the good faith of the prior user first means that when the user uses a certain mark as a trademark through no fault of his own, he does not know that others have actually used a trademark that is identical or similar to the mark on the same or similar goods.

Secondly, since the exclusive right of a registered trademark is limited to the goods or services for which it is approved for use, when the registered trademark constitutes a well-known trademark, the prior user uses a trademark that is identical or similar to the trademark on non-similar goods or services, and If it has the effect of misleading the public, the use by the prior user cannot be described as "in good faith." When the pattern of a registered trademark constitutes a work within the meaning of copyright law, the prior user uses the pattern as a trademark for non-similar goods or services, unless the prior user can prove that it has legitimate rights to the pattern used. Nor can it prove that its use was made in good faith.